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songer_jurisdiction
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
QUINN, County Assessor, et al. v. AERO SERVICES, Inc.
No. 11907.
United States Court of Appeals Ninth Circuit.
Jan. 24, 1949.
Rehearing Denied March 14, 1919.
Harold W. Kennedy, County Counsel, and Andrew O. Porter and James A. Co-bey, Deputies County Counsel, Los Angeles County, all of Los Angeles, Cal., for appellant.
Francis B. Cobb, -of Los Angeles, Cal., for appellee.
Before STEPHENS, HEALY and BONE, Circuit Judges.
STEPHENS, Circuit Judge.
Quinn and Byram, County Tax Officers, appeal from the order of the bankruptcy court affirming its jurisdiction under Section 64, sub. a of the Bankruptcy Act, 60 Stat. 330, 11 U.S.C.A. § 104, sub. a(4), to redetermine the assessed valuation made by the County Board of Equalization of the bankrupt’s personalty for county property tax purposes. The bankruptcy court was entertaining a petition for the reorganization of Aero Services, Inc., under the bankruptcy law. For convenience, we sometimes refer to petitioner as “Aero” and, notwithstanding a petitioner in a reorganization proceeding is not strictly speaking a bankrupt, we sometimes refer to petitioner herein as the “bankrupt”.
Aero Services, Inc., owned the taxed personalty and also certain .real property, all situated in the county of Los Angeles, on the first Monday in March which is the tax and lien date in California. Calif.Rev. & Tax Code, Sections 405, 2192, 117, 2189. A verified declaration of the property for tax purposes was made and filed with the County Assessor on May 14, 1946, showing the estimated taxable value of the personalty as of the first Monday in March, 1946. Soon thereafter and prior to the first Monday in July, 1946, the County Assessor fixed the value of the personalty at the estimated figure of the declaration, $355,710.
Aero Services, Inc. initiated the reorganization proceedings on June 3, 1946, by filing its petition under Section 322 of Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 722. Aero was authorized to retain possession of the property. On July 1, 1946, the County Board of Equalization commenced its review of all assessments within the county for purposes of correcting any errors of the County Assessor and for purposes of equalizing the assessments. Neither Aero nor anyone for Aero took advantage of the law giving the owner of property the right to file an application, or appear at the public hearings before the Board to request a reduction in or a redetermination as to the personalty assessment. A tax bill was sent Aero based upon the assessment and the tax, in accord therewith, became due on November 1, 1946, and delinquent on December 5, 1946. On December 6, 1946, Aero filed a petition praying that an .order be made requiring the County Assessor and the County Tax Collector to show cause why the bankruptcy court should not redetermine the tax assessment value of the personalty, claiming the assessment to be grossly excessive.' The order issued and the county officers responded by objecting
to the jurisdiction of the bankruptcy court. The referee, after a hearing, overruled the objections and the bankruptcy court affirmed the order.
The issue is whether the bankruptcy court had' jurisdiction to redetermine the assessed valuation of the bankrupt’s personalty for county tax purposes and to fix the tax accordingly.
The bankruptcy court resolved the issue of its jurisdiction in the affirmative, upon its interpretation of Section 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4), which we quote in part: “* * * In case any question arises as to the amount or legality of any taxes, such question shall be heard and determined by the court”.
The court cited Lyford v. City of New York, 2 Cir., 137 F.2d 782, 786, in which the judge discusses Arkansas Corporation
Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244, and states that in his opinion the effect of the Arkansas-Thompson case is to “restrict the court to* finding if the tax is legally due and to deny it power to review the action of a quasi-judicial taxing body [emphasis ours] in setting, after due hearing, a valuation of property for tax purposes.” The bankruptcy court felt that the real basis of the Arkansas-Thompson decision was that the Arkansas commission, with the bankruptcy trustee participating in the proceeding, acted in a quasi-judicial capacity in settling the tax. The trustee not having appealed, and the state tax proceedings having been concluded prior to the bankruptcy, the determination had become res judicata. In re Monongahela Rye Liquors, Inc., et al., 3 Cir., 141 F.2d 864, was relied upon.
The court, in our case, concluded [75 F. Supp. 347, 353] : “In the instant case the time for objection to the assessmént before the Board of Equalization had not expired at the time of' the within bankruptcy proceeding. There had been no hearing, finding or final order on the tax at the time of bankruptcy and it therefore appears that the determination of the amount of tax may be had in those pending bankruptcy proceedings, and accordingly this Court determines that the objection to the jurisdiction should be overruled.”
It is implicit in the bankruptcy court’s comment upon the Arkansas-Thompson case that that court was of the opinion that some phase of an adversary appellate hearing must have been held, with the taxpayer participating, before the bankruptcy court is precluded from exercising the power to reassess the property and finally fix a tax. That is, res judicata depends upon the participation of the taxpayer in a hearing before the Board of Equalization or at least this is so when the bankruptcy proceedings have been initiated before the assessment .has been finally determined by the Board.
Appellant thinks the Arkansas-Thompson case cannot be construed so broadly. He thinks the point controlling in the cited case is that an assessment is res judicata after a judicial review of the administrative act, whether or not the taxpayer has actually appeared, if, in fact, there is provision in the law for such review and the taxpayer has had a full right to appear and participate in such review. If by choice he does not avail himself of it, the assessment is final. We think the latter construction the correct one under Arkansas v. Thompson, supra, and as well, Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, at 578, 579, 67 S.Ct. 467, 91 L.Ed. 504.
In our opinion, the applicable procedure adopted for assessment of property taxes in California constitutes a quasi-j udicial determination. The assessment procedure functions from March to July and in .some cases into August. Between the first Mondays in the months of March and July the County Assessor is required to ascertain and assess all taxable property within his jurisdiction as of the first Monday in March. Sec. 405. Between the first Monday in March and the last Monday in June each taxpayer is required to file with the County Assessor a verified declaration of his taxable property. Sec. 441. In addition, the County Assessor is authorized to subpoena and examine any taxpayer with respect to any statement disclosing taxable property. Sec. 454. Upon completion of the assessment roll on or before the first Monday in July, by the assessor, he delivers it to the County Board of Equalization. Secs. 616, 617. The County Board of Equalization, upon receipt of the roll, gives legal notice by publication of the roll’s completion and the time at which the board will meet to equalize assessments. Sec. 1601. Taxpayers desiring changes in their assessments must, either in person or by an agent, file verified written applications for such changes, setting forth the supporting facts. Applicants may be present at stated hearing and must be examined under oath by the Board concerning the value of their property, if they so desire. Secs. 1607, 1608. The Board may, in the course of its hearing of any application, subpoena witnesses and take evidence and the Assessor and his deputies must be present to present evidence as needed. Secs. 1609, 1610. The session of the Board commences on the first Monday in July and continues not later than the third Monday in July. Sec. 1603. For the purpose of equalizing assessments the Board may increase or decrease individual assessments. Sec. 1605. Following the close of the Board’s session the corrected assessment roll is delivered to the County Auditor for totaling of the valuations thereon. Secs. 1614, 1646.
We think the procedure just outlined provides for a valid and constitutional determination, quasi-judicial in nature, whether or not the taxpayer petitions for a redetermination and whether or not he appears. We also think the fact that the reorganization proceeding antedated the Board of Equalization’s hearings is of no consequence. See Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 710, 4 S.Ct. 663, 28 L.Ed. 569. The bankruptcy court in its opinion correctly stated the law, though it did not follow it, where it said: “The minimum requirement apparently would be a determination by a quasi-judicial body in conjunction with a quasi-judicial hearing, or at least the right to such hearing.” See Commonwealth of Pennsylvania v. Aylward, 8 Cir., 154 F.2d 714; Luce v. City of San Diego, 198 Cal. 405, 245 P, 196; Dawson v. Los Angeles County, 15 Cal.2d 77, 81, 98 P.2d 495. The facts present a situation comparable to a judgment by default, one which is a proper basis for a plea of res judicata and estoppel. In re Jacobson’s Guardianship, 30 Cal.2d 326, 334, 182 P.2d 545; Fitzgerald v. Herzer, 78 Cal.App.2d 127, 131, 132, 177 P.2d 364,
In People v. Goldtree, 44 Cal. 323, 325, the court holds that “ * * * The Board of Equalization, in passing on the question whether an assessment is too high or too low, acts in a judicial capacity, and its decision is an adjudication, and as clearly so as a judgment for the recovery of a tax * * * In Los Angeles Gas & Electric Co. v. County of Los Angeles, 162 Cal. 164, 121 P. 384, 386, 9 A.L.R. 1277, the function of the Board is again discussed: “ * * * Upon such hearing, it is the duty of such board to determine the value of the property under consideration for assessment purposes upon such basis as is used in regard to other property, so as to make all the assessments as equal and fair as is practicable. In discharging these duties, the board is exercising judicial functions, and its decision as to the value of the property and the fairness of the assessment, so far as amount is concerned, constitutes an independent and conclusive judgment of the tribunal created by law for the determination of that question, which abrogates and takes the place of the judgment of the assessor, upon that question. * * * ”
When the Board, sitting as a Board of Equalization, determined the assessment in question, it became final and conclusive. The recent case of Universal Consolidated Oil Co. et al. v. Byram, County Tax Collector, 25 Cal.2d 353, 362, 153 P.2d 746, 751, supports this view: “* * * As appears from the numerous authorities cited in the forepart of this opinion, the respective county board of equalization is the fact-finding body designated by law to remedy excessive assessments (Cal.Const, art. XIII, § 9), and when that tribunal, after due hearing and within the limits of reasonable discretion, makes its findings on the facts, such decision is final and conclusive. * * * ” And in Los Angeles Gas & Electric Co. v. County of Los Angeles, supra, “ * * * The law necessarily leaves the determination of the question of fact of value to certain officers, and when it appoints tribunals for that purpose, as in this state primarily the assessor, and, for purpose of review, the board of supervisors, acting as a county board of equalization, the conclusion of those tribunals on such a question of fact constitutes a judgment that is not collaterally assailable in the courts. This is the universal rule, and it has been so held in this state.”
It is suggested that our case is ruled by State of New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284, but the difference which is pointed out in our quotation from the Arkansas-Thompson case in note 1 applies to our case as well. That is, in Arkansas-Thompson and our case there is provision for a quasi-judicial hearing whereas in New Jersey v. Anderson there is not. See In re Ingersoll Co., 10 Cir., 148 F.2d 282.
The bankruptcy court erred in not dismissing the petition for redetermination, and the proceeding is remanded with instruction to dismiss the petition for redetermination in accord with this opinion.
Reversed and remanded.
Arkansas Corporation Commissioner, et al. v. Thompson, Trustee, 313 U.S. 132, 61 S.Ct. 888, 891, 85 L.Ed. 1244, concerned the matter of taxes of a railroad under reorganization as provided for in § 77, Bankruptcy Act of 1933, 11 U.S. C.A. § 205. No appeal, as provided for by tile state statute, was taken to the state court and time for appeal lapsed. The bankruptcy court was then petitioned to redetermino the assessment under authority of § 64, sub. a (4) Bankruptcy Act. In the course of the court’s opinion it is said: “ * * * indicates that taxpayers in bankruptcy or reorganization are intended to have the extraordinary privilege of two separate trials, one state and one federal, on an identical issue of controverted fact — the value of the property taxed. Manifestly, whether or not taxes are ‘legally due and owing’ to a state depends upon the valid laws of that state. Ad valorem taxes depends upon a determination of value. The governmental function of fixing the value for tax purposes has rarely, if ever, been a judicial function. Tlie ‘legality’ of the action of Arkansas in entrusting the determination of value to its Corporation Commission is not challenged here, as of course it could not be. If the Commission properly found the value of the property, the ‘amount’ of the taxes is not in question. For it is not asserted that the Commission made an improper arithmetical computation in applying the legal tax rate to the determined property value. It is in this respect, as well as with regard to the dissimilar duties and functions of the state administrative agencies involved, that this case differs from that of [State of] New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 141, 51 L.Ed. 284, upon which the trustee here strongly relies.” See also Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, and Kelly v. United States, 9 Cir., 90 F.2d 73, 76.
Quoting from 141 F.2d at page 868 of the In re Monongahela case: “The view we take of the decision in the Thompson case is that where, after a hearing, a quasi-judicial body, thereunto duly empowered, determines the amount of a tax due, with the right on the part of the taxpayer to a judicial review of the determination, all conformable with the requirements of due process, such determination, upon becoming final by operation of law, is conclusive upon a court of bankruptcy save for mathematical error in tht, computation of amount of the tax or legal error in its assessment. * * * The question in any instance, therefore, is whether the circumstances necessary to justify an exorcise of bankruptcy’s power to redetermine a tax claim are present. We think they are in the instant case. The taxpayer having failed to file a return, the tax assessments against it were based upon estimated ‘settlements’ arbitrarily mad#* by the State’s* Department of Revenue without hearing the taxpayer. The pertinent Pennsylvania statute, viz., the Fiscal Code of 1929, P.L. 343, as amended by the Act of February 2, 1937, P.L. 3, 72 P.S. §§ 1-1804, provides that, in case a taxpayer fails to file timely a report necessary to enable the Department of Revenue to settle a tax, the Department may make an estimated settlement wherein a fifty per cent penalty is included (§ 804). From any estimated settlement no right to review or appeal is allowed. * * * For the most part, the tax claims in the instant case are based upon such estimated settlements. We think it is plain that the referee’s hearing and determination of the amount of tax actually due did not involve a second trial of a controverted fact, such as the exercise' of the power en tailed in the Thompson- ease. We are, therefore, of the opinion that, under the circumstances tere shown, the rule of the Anderson case is applicable and that the referee’s redetermination of the Commonwealth’s tax claims was a justifiable exercise of bankruptcy’s power.”
All statutory citations by numbers only are to the California Revenue and Taxation Code.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_insane
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A
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below err in not permitting an insanity defense? (or did the court err in its conclusion about whether the defendan was mentally competent to stand 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". 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".
Eugene E. TURBERVILLE, Appellant, v. UNITED STATES of America, Appellee. Bernard T. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee. James H. SIMPSON, Appellant, v. UNITED STATES of America, Appellee.
Nos. 16343, 16344, 16392.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 3, 1961.
Decided Feb. 1, 1962.
Petition for Rehearing En Banc in 16343 Denied En Banc March 19, 1962.
Certiorari Denied June 25, 1962.
See 82 S.Ct. 1596.
Mr. Albert Noble McCartney, Washington, D. C. (appointed by this court), for appellant in No. 16343.
Mr. Joseph D. Bulman, Washington, D. C. (appointed by this court), for appellant in No. 16344.
Mr. John E. Powell, Washington, D. C. (appointed by this court), for appellant in No. 16392.
Mr. Donald S. Smith, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., Mr. Charles T. Duncan, Principal Asst. U. S. Atty., and Mr. Thomas A. Flannery, Asst. U. S. Atty., were on the brief, for appellee. Mr. Abbott A. Leban, Asst. U. S. Atty., also entered an appearance for appellee in No. 16344.
Before Prettyman, Washington and Burger, Circuit Judges.
PRETTYMAN, Circuit Judge.
On the evening of December 5, 1959, two men and a woman were sitting beside a fire in front of an unoccupied shack on a vacant lot in the Southwest section of Washington. Three men came upon the lot and launched a vicious assault upon them. As a result of the savage attacks, one of the men already on the lot, Ollie Bowman, was beaten to death; the second was beaten and burned; and the woman was raped, beaten and burned.
The appellants here, Turberville, Simpson and Williams, were arrested and indicted for first degree murder, felony murder, assault with intent to commit rape, assault with intent to commit mayhem, assault with a dangerous weapon, and mayhem. They entered pleas of not guilty and were tried by jury. Each was convicted of second degree murder under the first degree murder count. Each was sentenced to life imprisonment with a minimum of fourteen years. Their appeals were consolidated.
A total of fourteen points are raised. We shall discuss ten. We find the remaining contentions of error to be without merit.
1. Appellant Simpson says the evidence does not sustain his conviction of murder in the second degree. He relies upon the fact that no evidence was presented showing that he participated physically in the assault upon the deceased Bowman. Testimony showed that Turberville and Williams actually beat and kicked Bowman. The prosecution was not required to make such an affirmative showing about Simpson, if he was properly charged as a principal under Section 105, Title 22, of the D. C. Code. That section provides in part: “In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, * *." The jury was instructed on that section. Under it, where defendants are charged as principals, the act of one defendant is the act of each.
On the witness stand Simpson admitted that he was present at the affray, that he hit the man Lucas, and that he tried to have intercourse with the woman. The man Lucas testified that Simpson stuck burning sticks of wood in his eyes. Thus there is no doubt that Simpson participated actively in the assault on the two men Bowman and Lucas. The fact that the victim beaten by Turberville died and the man beaten by him (Simpson) did not, does not lessen Simpson’s liability for advising, inciting, conniving, aiding or abetting in the homicide. The law on the point is well settled. As Wharton states it:
“All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. * * * In such cases of confederacy all are responsible for the acts of each, if done in pursuance of, or as incidental to, the common design.”
The cases he cites go back to Hale’s Pleas of the Crown. 1 Hale P.C. 439.
We conclude that the jury’s verdict was amply supported by the evidence.
2. Appellant Simpson argues that the trial judge erred in refusing to grant his motion for a directed verdict of acquittal by reason of insanity, and that the jury was not justified in finding that the Government had proved beyond a reasonable doubt that appellant was not suffering from a mental defect.
Simpson’s insanity defense rested upon the results of two intelligence tests and the testimony of one of his public school teachers. In 1953, when he was fourteen years old, Simpson’s score on a test administered to him by the Public School System of the District of Columbia showed that he had an I. Q. of 67 and a mental age of just over nine years. In 1958 he was rejected for military service because he scored in the lowest mental group on the Armed Forces Qualification Test.
The Moore and Stewart cases are urged upon us by the Government, but those cases are not applicable in the case at bar. In this case the issue was submitted to the jury; the points made by appellant concern his motion for a directed verdict and the sufficiency of the evidence to support the verdict.
When we have ordered directed verdicts it has been upon strong evidentiary grounds. In Douglas we pointed out that “Each case must be decided upon its own facts” and that directing a verdict is “a duty to be performed with caution”. In Fielding we found a “strong showing of insanity made by the defense”. In Satterwhite “substantial evidence established the basis for a reasonable inference that appellant had been suffering from severe mental disturbance on” the date of the offense. In Wright we pointed out that “Wright’s showing of insanity, far from being merely ‘some evidence’ of insanity, is about as strong as can ever be made, unless the accused happens to have had a psychiatric examination immediately prior to his act.” We are of clear opinion that the testimony offered by Simpson was not sufficient to require a directed verdict.
Even if Simpson’s evidence of low scores on intelligence tests were deemed to be sufficient to take the issue of insanity to the jury, the rebuttal testimony offered by the Government clearly justified rejection of the defense by the jury.
3. Simpson challenges as deficient the charge to the jury on the insanity issue. He claims that it dealt principally with the existence or non-existence of “mental disease”, when it should have emphasized “mental defect”.
Assuming that Simpson was entitled to an instruction on insanity, the charge given was not defective. The trial judge repeatedly used the phrase “mental disease or defect”. He employed terms such as “defective mental condition” and “mental abnormalities”. We find no error in his definition of mental defect or in his references to mental defect when explaining the causality requirement and when instructing on the issue of burden of proof.
4. All the appellants contend they were denied their constitutional right to a speedy trial.
Appellants were arrested on December 7 and 8, 1959. On January 25, 1960, Williams moved the court for a mental examination. On January 29th that motion was granted, and in the same order the case was continued to May 25, 1960. On May 16, 1960, Turberville moved for a continuance on the grounds that his counsel was ill and that appellants were still undergoing mental examinations. The case was continued until October 10, 1960. Between this date and November 16, 1960, the date of the actual commencement of the jury trial, the prosecutor was granted three continuances to locate missing witnesses. There is no indication that appellants objected to any of these continuances; nor did they ever move for an immediate trial or contend that any of the various delays were “manufactured” ; no prejudice appears to have been wrought. We think appellants’ contention cannot be sustained.
5. In his closing argument to the jury, counsel for appellant Williams referred to the participation by the other two defendants in activities of Williams and urged the finding of the lesser included offense of second degree murder. Appellant Turberville contends that these statements ignored his persistent denials of participation in the commission of the alleged crimes and interfered with the impartial assertion of his plea of not guilty. Neither Williams nor Simpson makes this argument.
Surely it is not improper per se for defense counsel to urge the jury to return a lesser verdict than that charged in the indictment. Furthermore counsel for Turberville failed to object at the trial to the closing remarks now in dispute. The trial judge charged the jury that what counsel stated in their arguments did not constitute evidence and also instructed the jury to consider separately each crime charged in the indictment, and that the evidence applicable thereto should be considered “separately as to each defendant.” Even were we to hold that the point is reviewable on appeal, we find it difficult to accept the contention that Turberville was prejudiced by an argument which was in essence a strong, and successful, plea against conviction of murder in the first degree and mandatory capital punishment. In the situation in which counsel then found their clients, pleas for convictions of lesser offenses would appear to have been sound tactics.
6. Appellants Turberville and Simpson contend that the trial court erred in admitting evidence regarding what they consider to be the commission of a crime not charged in the indictment.
An examination of the facts surrounding what we shall term the “Tucker incident” is necessary to our disposition of the point. On the evening of the murder Turberville entered a drug-store near the scene of the alleged murder looking for one Tucker, a man who had apparently just struck a friend of Turberville. When an employee told Turberville that he did not know where Tucker was, Turberville announced that he was “going to get him” and left the store. What occurred next is not clear. At about the same time that evening, however, a man was seen being chased by Turberville, Williams, and another man on the vacant lot where the alleged murder occurred. It appears that Tucker shortly thereafter ran back into the drugstore and “laid down on the floor” crying, “They are going to get me.” Turberville, carrying bricks, and Simpson, armed with a piece of wood, then entered the store. After the stoi-e manager had threatened to call the police, they left. As they left, Turberville said, “We are going to get him anyway.” Appellants then approached Lucas, Bunn and Bowman on the vacant lot and asked if they had “seen a man pass”. Bowman answered in the negative, and appellants then commenced the assault.
The well-settled rule which appellants seek to invoke is that upon the trial of an accused person evidence of another offense, wholly independent of the one charged, is inadmissible. However, as we stated in Bracey v. United States, there are many well-established exceptions to this rule. We defined two of these exceptions as follows: “[E]videnee of other criminal acts has been held admissible by this court when they are so blended or connected with the one on trial as that proof of one incidentally involves the other; [citing cases] or explains the circumstances thereof; [citing cases] * * * ”
We conclude from the record that the challenged testimony was admissible as within these exceptions to the general rule. In view of the proximity in time, place, and persons involved, and the close connection between the pursuit of Tucker, the subsequent inquiry of Bowman, and the ensuing assault, we cannot consider the Tucker incident, if indeed it involved any offense, to be an offense which should have been barred from the jury’s consideration.
7. Appellant Simpson contends that two oral statements and a written statement which he made after arrest were admitted in evidence in violation of “the Mallory rule”.
Simpson was arrested at 11:20 p. m., on December 7, 1959. He was taken to police headquarters, arriving around midnight. Immediately thereafter the police began to question him about his alleged participation in the crimes. Within half an hour he made an oral statement implicating himself in the offenses. The officers testified that before he began this statement he was warned of his rights and told he did not have to make a statement; Simpson denied this. The written statement contains a recitation in accordance with the officers’ testimony. The police began to reduce the statement to writing at 12:30 a. m. and completed the transcription at 1:25 a. m. Simpson then read and signed the statement. He was brought before a judge of the Municipal Court at 10:00 a. m. on the same morning. Thereafter, at approximately four o’clock that afternoon, two policemen went to the jail for the purpose of questioning the three defendants. Simpson then repeated his earlier incriminatory statement in the presence of Williams and Turberville.
We think that “unnecessary delay” within the meaning of Rule 5 (a) and the Mallory case has not occurred when a defendant is arrested, brought to police headquarters around midnight, begins to make a statement within thirty minutes thereafter, and is then taken before a magistrate at 10 a. m. the same morning.
Simpson’s second inculpatory oral statement was made after he had been presented before the magistrate. Despite the dispute in the testimony as to whether Simpson was advised by the detectives of his rights before he signed the written statement, it is agreed that he was taken before a judge of the Municipal Court in open court, a lawyer was appointed for him, this attorney conferred with him, and the taking of testimony was then postponed. A detective present at the time testified flatly at first that Simpson was advised of his rights by the judge, but later said he could not remember precisely what was said. This testimony, with the denials by the accused, went to the jury upon the trial. In the absence of clear proof to the contrary we must in these circumstances give weight to the presumption that the judicial proceeding was regular and in accordance with the rules.
In this connection, however, and in our supervisory capacity over criminal proceedings in this jurisdiction, we admonish the judges of the Municipal Court that careful, precise compliance with the criminal rules, under which presentments and preliminary examinations in felony cases are conducted before judges of that court, and unmistakable records of such compliance in these cases, are in the interest of the administration of justice. Failure to comply with those rules is affirmatively detrimental to that administration, since it vitiates much that subsequently occurs. And failure to record compliance in some unmistakable fashion impedes that administration, because it throws these vital events into the realm of testimonial dispute. The requirements of Rule 5(b) are clear, precise and categorical. We should think that compliance in' literal completeness would be a simple record for the courtroom clerk or the judge to keep in so important matters as these.
In the case at bar the trial court put to the jury the issues concerning the statements of Simpson made after his presentment to the magistrate. We think the evidence amply justified the submission.
Simpson urges us to adopt a rule that no statement made by an arrested person as the result of police interrogation may be admitted against him over objection. This, his counsel says, is the precise meaning of the Fifth Amendment. He refers to the elaborate discussion of the history and policy of the privilege by Professor Wigmore. We are advised of no ease which, up to now, has gone so far. The statement of Mr. Justice Douglas, in his concurring opinion in Reck v. Pate, of his own view of what the rule ought to be, clearly shows that he would hold admissible statements made under detention if presentment is prompt, the accused is informed of his right to silence, and he is accorded an opportunity to consult counsel. We are not prepared even to approach the blanket rule of inadmissibility urged upon us by counsel for Simpson.
8. After Simpson had made his second oral admission, in the presence of Williams, the police asked the latter whether he had anything to say. Williams answered in the affirmative and then proceeded to make an incriminatory statement. He now contends that this statement was improperly admitted in evidence at the trial because it was made after the committing magistrate had failed to comply with the requirements of Rule 5 (b), Williams testified at trial that the magistrate did not appoint counsel to represent him, or advise him of his right to refuse to make a statement, or that any statement might be used against him. Nor, it is claimed, was he told of the charge or that he was being held without bond. Williams was arrested about one o’clock, p. m., and was presented before the magistrate about 2:15 p. m. that same day.
The Government offered evidence which contradicted appellant’s version of what had transpired in the Municipal Court. A Detective Pixton testified that during the presentment appellant was advised of his rights, informed of the charge, and allowed time to consult with his court-appointed counsel. The original complaint filed in the Municipal Court, which was admitted in evidence, reveals that an attorney was appointed by the judge and that bond was considered and appellant ordered held in no bond.
We think the trial judge was free to disbelieve Williams’s testimony. The presumption of regularity which applies to judicial proceedings is applicable here. Appellant failed in his burden. Much of what we have said hereinabove in respect to Simpson’s statements applies to Williams.
9. Simpson says the trial court erred in excusing for cause on the voir dire veniremen who answered affirmatively to the question whether they were opposed to capital punishment. What happened was simple and brief. The United States Attorney, addressing the panel, said: “Are any of you opposed to capital punishment, and, if so, stand? ” He then addressed the question to each of eighteen prospective jurors, obviously those who stood in answer to his general question. Some of them said “Yes”; most of them stood silent, perhaps assenting with a nod; one answered “I think so”; one stated, “I am opposed to capital punishment.” All were excused for cause, without further questioning. Thus the panel as it came to the drawing of the jurors for the case was without members who for any reason were opposed to capital punishment. Counsel for Simpson argues that he is entitled as of constitutional right to a jury drawn from a fair cross-section of the community. He cites the Glasser, Thiel, and Ballard eases. A premise of his argument is, of course, that people opposed to capital punishment comprise a large segment of any cross-section of the community.
Dispositive of the contention is the fact that the point was not raised in the trial court. Nevertheless, since it is so earnestly pressed upon us by counsel, and since if a serious error has been committed we might note it sua sponte, we shall discuss it.
The process of selecting jurors in this jurisdiction is delineated quite specifically by statute. A jury commission selects prospective jurors “from the different parts of the District, and * * * as nearly as may be, from its intelligent and upright residents.” The commission writes the names on “separate and similar” pieces of paper, folds them, and puts them in a box. The box is sealed. Not less than six hundred names must be in the box when a drawing begins. Once a month the commission opens the box and draws by lot the names of such number of persons as are needed for jury service in the courts. The persons so drawn constitute a panel, or several panels. When a case is called for trial a panel is summoned and questioned upon subjects pertinent to qualification to serve in the particular case. The court excuses “for cause” such persons as it deems not qualified to render impartial judgment in the case. From the remaining persons the prosecution and the accused are entitled to excuse a certain number for any or no reason — “peremptory challenges”. The end result is twelve persons seated as jurors. The system is discussed in Frazier v. United States.
The point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn. Chance governs the next step. The panel drawn by lot may or may not be a cross-section of the community. No maneuvering or purposeful selection is permitted at that stage, lest the final twelve be by design of one or another thought or character. The rights of an accused in respect to the panel and the final jury are (1) that there be no systematic, intentional exclusion of any section of the community and (2) that there be left as fitted for service no biased or prejudiced person.
None of the cases cited by Simpson expresses a view contrary to the foregoing. Indeed in Thiel the Court after stating the rule as to a jury “drawn from a cross-section of the community”, went on to say:
“This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter.”
Opposition to capital punishment may be for any one of a variety of reasons. They range from an unshakable religious conviction as stark as the Old Testament Commandment to a mere intellectual or philosophical distaste. Not all “opposition” to this penalty creates incompetence for jury service. So not all who are “opposed” to capital punishment are necessarily unqualified for service in a capital case. The nub of disqualification on this ground is whether the opposition is of such nature as to preclude an impartial judgment on the facts and the law of the case to be tried.
The situation is, then, that the trial judge in the case at bar may have excused more from the panel than he needed to excuse. But among those who remained were none who suffered on this account an impediment to proper service. What Simpson is really asserting is the right to have on the jury some who may be prejudiced in his favor—i. e., some who are opposed to one possible penalty with which he is faced. We think he has no such constitutional right. His right is to absolute impartiality.
The whole subject was thoroughly explored in an exhaustive, scholarly opinion by Circuit Judge Hincks, writing for a unanimous Second Circuit in United States v. Puff. We need not here quote from or attempt to summarize that discussion. We refer to it and rely upon it. The matter is made quite clear by a long series of authoritative pronouncements, beginning with Chief Justice Marshall’s ruling in Burr’s Trial and including Reynolds v. United States, Northern
Pacific R. R. Co. v. Herbert, Brown v. New Jersey, Miles v. United States, and Howard v. Kentucky. In Shettel v. United States this court (Groner, Justin Miller, and Vinson) said on the point:
“Moreover, while it is true, as appellant argues, that the Constitution guarantees to an accused the right to a speedy trial by an impartial jury, it does not follow that the rejection of qualified persons for insufficient cause would deprive appellant of that right; or that any useful or legitimate purpose would be served by remanding the case for a new trial before another impartial jury. It is significant in this respect, moreover, that no claim is made that the jury, as finally constituted, was biased or prejudiced; or that appellant was deprived of a trial by an impartial jury.”
The Supreme Court, citing precedents, said in Logan v. United States, decided seventy years ago:
“5. As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had ‘conscientious scruples in regard to the infliction of the death penalty for crime’ were rightly permitted to be challenged by the government for cause. A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror.”
In Gillars v. United States we held that a prospective juror who said she was opposed to capital punishment and did not believe she could render a fair and impartial verdict in the case was properly excused for cause. The touchstone in excuse for cause under the doctrine adopted by most courts is a conscientious scruple. This means something more than mere opposition. It means an opposition of such nature as to impede ability to render a fair and impartial verdict upon the law and the evidence as it develops in a given case.
Simpson’s argument, as stated to us, is that the jury which tried him was not a fair cross section of the community, because it did not include any persons opposed to capital punishment. He makes no contention that the jury was prejudiced against him or that it was not impartial. However our own inquiry has brought to our attention another thesis, in this area of the law. It is that persons who are not opposed to capital punishment are psychologically inclined against criminals and therefore a jury composed of such persons is not an impartial jury. We understand that this thesis has not as yet received the sanction of any court. We cannot accept it. We examine it because this is a serious case, and if the thesis were tenable it might cause reversal. No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not opposed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. We think the premise for the thesis has no substance.
From all these considerations we conclude that the trial judge did not commit error when he excused all persons who opposed capital punishment. At the same time, in our supervisory capacity we urge upon the District Court that a better practice would be to proceed one more step in this questioning on voir dire to ascertain in general terms the weight of the opposition the juror entertains, when measured against his ability to render a fair and impartial verdict in the case on trial, based upon the evidence presented in that case and the law applicable thereto. We do not mean to suggest a prolonged inquiry, or any attempt to probe the mind and conscience of the person, which practice we condemned long ago in Funk v. United States. We mean to suggest an additional question or two, sufficient to identify the nature and substance of the person’s opposition; no farther, as we said in Funk, “than to ascertain the existence of this necessary want of bias or prejudice”.
10. Appellants also urge that the trial judge was not qualified to sit in the District Court, having been appointed to sit in a legislative court and not in a constitutional court. We have rejected the contention in another case, pointing out that the District Court in this jurisdiction is an Article I court as well as an Article III court. The point is before the Supreme Court. We think the administration of justice requires that we not delay disposition of these appeals. We will, of course, entertain a motion for reconsideration and recall of mandate, if the Supreme Court rules this trial judge to be disqualified.
The judgments of the District Court are
Affirmed.
. The indictment contained nine counts. Count 1 charged first degree murder, D.C.Code § 22-2401; Count 2, murder while perpetrating the crime of rape, D.C.Code § 22-2401; Count 3, murder while perpetrating the crime of mayhem, D.C.Code § 22-2401; Count 4, assault with intent to commit rape, D.C.Code § 22-501; Count 5, assault with a dangerous weapon, D.C.Code § 22-502; Counts 6 and 8, mayhem, D.C.Code § 22-506; Counts 7 and 9, assault with intent to commit mayhem, D.C.Code § 22-502.
Counts 2 and 3 were dismissed during the trial at the request of the prosecution.
. Each was convicted and sentenced upon other counts.
. Lucas testified that Turberville and Williams beat and kicked Bowman; Bunn also testified that Williams beat Bowman. The latter’s death was the result of hemorrhage and shock due to ruptured viscera.
. Polen v. United States, 41 App.D.C. 4 (D.C.Cir. 1913) (involving D.C.Code § 908 (1901), the earlier, identical version of § 22-105).
. 1 Wharton, Criminal Law § 258 (12th ed. 1932); and see id. § 251.
. Moore v. United States, 107 U.S.App.D.C. 332, 277 F.2d 684 (1960).
. See Stewart v. United States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), rev’d on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961).
. Douglas v. United States, 99 U.S.App.D.C. 232, 239, 239 F.2d 52, 59 (1956).
. Id. at 237, 239 F.2d at 57.
. Fielding v. United States, 102 U.S.App.D.C. 167, 169, 251 F.2d 878, 880 (1957).
. Satterwhite v. United States, 105 U.S.App.D.C. 398, 207 F.2d 675 (1959).
. Wright v. United States, 102 U.S.App.D.C. 36, 41, 250 F.2d 4, 9 (1957).
. The Government offered the testimony of Dr. David J. Owens, a psychiatrist on the staff at St. Elizabeths Hospital, to rebut the alleged insanity defense. Dr. Owens testified that his ninety-day observation and examination of Simpson led him to the diagnosis that Simpson had not been suffering from a mental disease or defect on the date of the crime. He stated that tests administered at St. Elizabeths revealed that Simpson was “suffering from borderline intelligence but not of sufficient degree of impairment to warrant diagnosis of mental defectiveness.”
. In that same order Simpson was also committed for examination pursuant to a motion by the prosecutor; in another order on that day reference is made to a motion by Simpson to the same purpose. On February 3rd Turberville moved for an examination, and the motion was granted February 12th.
. Brooks v. United States, 110 U.S.App.D.C. 192, 290 F.2d 383 (D.C.Cir. 1961); James v. United States, 104 U.S.App.D.C. 263, 261 F.2d 381 (D.C.Cir. 1958), cert. denied, 359 U.S. 930, 79 S.Ct. 613, 3 L.Ed.2d 631 (1959); Pietch v. United States, 110 F.2d 817, 129 A.L.R. 563 (10th Cir.), cert. denied, 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414 (1940); Chinn v. United States, 228 F.2d 151 (4th Cir. 1955). See Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905).
. See Clark v. United States, 104 U.S.App.D.C. 27, 259 F.2d 184 (D.C.Cir. 1958); Tatum v. United States, 88 U.S.App.D.C. 386, 392, 190 F.2d 612, 618 (D.C.Cir. 1951).
. In this connection see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239, 60 S.Ct. 811, 84 L.Ed. 1129-(1940).
. 79 U.S.App.D.C. 23, 25, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944).
. Id. at 26, 142 F.2d at 88.
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
. See Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335 (D.C.Cir.), cert. denied, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960); Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (D.C.Cir. 1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959); Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685 (D.C.Cir. 1958), cert. denied, 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959); Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (D.C.Cir. 1957).
. 8 Wigmore, Evidence §§ 2250-2252 (McNaughton rev. 1961).
. 367 U.S. 433, 448, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961).
. Fed.R.Crim.P. rule 5(b), 18 U.S.C.A., provides: “The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant. to bail as provided in these rules.”
. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946).
. Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946).
. D.C.Code § 11-1401 et seq. (1961).
. 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948).
. Supra note 26, 328 U.S. at 220, 66 S.Ct. at 985, 90 L.Ed. 1181.
.
Question: Did the court below err in not permitting an insanity defense?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_state
|
56
|
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".
SUBIN et al. (MINNUCCI et al., Interveners), v. NATIONAL LABOR RELATIONS BOARD.
No. 7092.
Circuit Court of Appeals, Third Circuit.
March 12, 1940.
Rehearing Denied May 7, 1940.
Charles J. Weiss, of Philadelphia, Pa.s Wessel, Bennett & Weiss, for Subin and others.
Thomas F. Gain, of Philadelphia, Pa., for Minnucci and others.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Lawrence A. Knapp, Asst. Gen. Counsel, Mortimer B. Wolfe, Bertram Edises, Leonard Appel, and Ramey Donovan, Attys., National Labor Relations Board, all of Washington, D. C., for respondent.
Before BIGGS, CLARK and JONES, Circuit Judges.
BIGGS, Circuit Judge.
The Subins, co-partners doing business under the name of Arcadia Hosiery Company, at Lansdale, Pennsylvania, and Leo Minnucci and certain others constituting a Shop Committee of Arcadia’s employees, intervenors, have petitioned this court to set aside an order of the National Labor Relations Board entered on April 27, 1939. The order requires the Subins to cease and desist from dominating or contributing support to the Shop Committee or to any other labor organization of their employees, from discouraging membership in American Federation of Hosiery Workers, Branch N¿. 67, referred to hereafter as the “Union”, or in any other labor organization of their employees by refusing to reinstate any of their employees or by discriminating in regard to their hire or tenure of employment, or, from coercing their employees in regard to their rights of self-organization for collective bargaining. The Board’s order also requires the Subins to withdraw recognition from the Shop Committee, to disestablish it as a representative of their employees and to offer reinstatement to certain named employees with reimbursement for loss of pay, and to give notice of compliance with the order.
The pertinent facts are as follows: In 1935 the Subins had a plant for the manufacture of hosiery at Pleasantville, New Jersey, as well as at Lansdale, Pennsylvania. In July, 1935, labor trouble developed at the New Jersey plant. Acts of violence took place, causing financial loss to the Subins. Operations continued undisturbed at the Lansdale plant where there was no labor trouble. We think that the Subins’ unfavorable attitude in regard to unionization was due in part at least to their experiences at Pleasantville. The Pleasantville plant was closed. The employees of Arcadia at Lansdale were not unionized. In July, 1937, the American Federation of Hosiery Workers, Branch No. 67, attempted to organize these employees. These efforts met with immediate success. In August, 1937, representatives of the Union, including Kellenbenz, a business representative of the American Federation of Hosiery Workers, requested the Suhins to sign a contract with the Union for employee representation. David Subin apparently informed Kellenbenz that he and his brother had decided to go out of business and therefore there was no point in meeting with representatives of the Union. Nevertheless a meeting was arranged, and a contract was submitted by Kellenbenz to David Subin. Subin in turn handed to Kellenbenz a notice addressed to the Arcadia employees which stated ■ that the Subins had decided to go out of business and to discontinue the manufacture of full-fashioned hosiery because of the highly competitive» condition in that industry. Kel-lenbenz and others persuaded Subin not to post this notice. The Board, however, found as a fact that Subin stated that he would post it and go out of business if the Union caused him any trouble.
Unionization had proceeded in other hosiery plants in Lansdale and about December 1, 1937, the Union sent a notice to hosiery plants in Lansdale that employees’ grievances should be aired through shop committees constituted by the Union. The Union requested that a notice to this effect be posted in the Arcadia plant. The notice was given to Alvin Holsopple, chairman of the Union’s Shop Committee at the plant so that he might deliver it to the Subins. A few days later, Weisbecker, Arcadia’s superintendent, came to Holsop-ple and showed him the liquidation notice which we have referred to previously. Holsopple testified that Weisbecker asked him if he did not regard the liquidation notice as “a better notice” than that relating to the use of the Union’s Shop Committee for the airing of grievances which Holsopple had requested be posted upon the plant bulletin board. It should be pointed out, however, that the Subins for their part, contend that they had decided to go out of business because Kellenbenz had threatened them with an “Apex Situation” if Arcadia did not recognize the Union for the purposes of collective bargaining. The Apex Hosiery Company of Philadelphia had suffered substantial damage because of a sit-down strike conducted by a local of the American Federation of Full Fashioned Hosiery Workers in defiance of local law. The Board found that the Subins made use of the liquidation notice to influence their employees “ * * * to abstain from or abandon membership in the Hosiery workers * * * ” and that the Subins therefore had coerced their employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, 49 Stat. 452, 29 U.S. C.A. § 157. It is not necessary for us to pass upon the question of whether or not the Act will serve to prevent an employer from threatening to go out of business in order to influence his employees from joining a union (See the decision of this court in Union Drawn Steel Company and Republic Steel Corporation v. National Labor Relations Board, 3 Cir., 109 F.2d 587) for the conclusion of law of the Board as to unfair labor practices committed by the Subins need not be based upon the finding of fact just referred to. It should be noted, however, that the Subins did not go out of business despite the liquidation notice which was posted upon December 10, 1937, and at the time of the hearings were still engaged in manufacturing hosiery at Lansdale.
The Board also found as a fact that the Shop Committee headed by Minnucci and others was a company-dominated union. In this connection the record shows that in the summer of 1937 while unionization of other hosiery plants in Lansdale was progressing, a notice was posted in the Arcadia plant calling a meeting of the Arcadia employees at a club in Lansdale. The Board found as a fact that the Subins gave their employees permission to remain away from work during this meeting and that about 175 of the Arcadia employees attended it. The creation of a labor or-ganizalion was discussed, agreed upon and officers and committeemen were elected. An attorney was employed to prepare the constitution and by-laws of the organization. A meeting of employees was called to ratify the constitution and to adopt the by-laws. This meeting took place on Saturday afternoon while the plant was closed. It was attended by a very few persons. Minnucci testified that he was disturbed by this small attendance and got in touch with David Subin. Within a short time thereafter, Benjamin Subin, Minnucci and other employees attended a meeting at the home of an employee named Fluck. At this meeting Benjamin Subin stated that he and his brother intended to go out of the knitting business and wanted to sell the machines to their employees upon an installment basis. Tt was then suggested that the plant be organized upon the Nunn-Busch plan. About a week later copies of the Nunn-Busch plan were circulated among the employees. Another meeting of employees was called at Superintendent Weisbecker’s brother’s home at which Benjamin Subin explained the Nunn-Busch plan and stated that he was interested in it. Other meetings followed between Min-nucci, Subin and others and a plan of organization for the Subin employees based upon the Nunn-Busch plan, was drafted. It was submitted to the Subins’ attorney, who made no substantial changes but struck out the names of those employees who were to form the Shop Committee which had already been inserted therein. Upon December 23, 1937, a notice was posted in the Arcadia plant with the Subins’ permission, which stated that there would be a meeting of the employees at the Lexington Line Tavern on December 24th. Upon the afternoon of December 23, Minnucci got together about thirty-five of the Arcadia employees, calling some of them from their work. David Subin read the Shop Committee plan to this gathering and answered questions about it. He apparently told those present that he and his brother would recognize the Shop Committee when it was chosen. When Subin left the meeting Minnucci took charge of it and presented the names of five men designated as members of the Shop Committee. No objections were made to any of them. Upon the following day approximately 140 of the Arcadia employees met as planned and voted to accept the Shop Committee plan.
Under it five designated employees were constituted the bargaining agency for all employees. The plan provided that disputes between the management and the Committee should be settled by arbitration. It provided also that the engaging of employees should be in the control of the management, but before any permanent employee could be discharged, such discharge should be submitted to the Committee for its approval. The plan also contained provisions in respect to hours of work and wages. The Board found that the Subins resisting the Union, “foisted the Shop Committee upon the employees”, welcoming its formation as an antidote to the activities of the American Federation of Hosiery Workers; that the Subins interfered with and dominated the formation and administration of the Committee, thereby interfering with and coercing their employees in the exercise of rights of collective bargaining guaranteed by Section 7 of the Labor Act, 49 Stat. 452, 29 U.S. C.A. § 157; and that therefore the Subins were guilty of unfair labor practices as defined bv Section 8(1) and (2) of the Act, '49 Stat. 452, 29 U.S.C.A. § 158(1, 2). In our opinion these conclusions of the Board are supported by “ * * * ' such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” See Consolidated Edison Company v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126; National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713, 721; Titan Metal Mfg. Co. v. National Labor Relations Board, 3 Cir., 106 F.2d 254; National Labor Relations Board v. Stackpole Carbon Co., 3 Cir., 105 F.2d 167.
As to Those Portions of the Board’s Order Requiring Reinstatement With Back Pay of Certain Employees.
The Board’s order requires certain employees to be reinstated in their positions with back pay, less sums earned in the interim. The cases of Alvin Holsopple and the three Kelso brothers may be treated together. Holsopple had been employed at the Arcadia plant for over three years; the Kelsos for comparable periods of time. All were members of the Union, a fact which was known to Superintendent Weisbecker. All four men had promoted actively the unionization of the Arcadia plant. Holsopple was the chairman of the Union’s Shop Committee, while the Kelso brothers distributed application cards and solicited memberships. Their discharges came about as follows. It was the custom at the Arcadia plant for the employees to clean their machines one day a year on their own time. Weisbecker informed all the employees that this work was to be done on December 31st. Holsopple and the Kelsos did not go to the plant until shortly after noon on that day. Long before their appearance, Weisbecker stated to the Shop Committee • according to his own testimony, “I am going to give them until eleven o’clock. If they are not in I will fire them.” At the suggestion of the Shop Committee, however, Weisbecker advanced the dead line of discharge to noon. Formal notices of discharge were prepared in advance. When Holsopple and the Kelsos arrived at the plant at about twelve-thirty o’clock in the afternoon, they were discharged. All four men had been attending- a meeting of the Union that morning, a fact which the Board found was known to Weisbecker.
Holsopple and the Kelsos testified that they were not told to appear at the plant by noon or be discharged. It is clear that it was the custom of the Subins not to pay their employees for the cleaning of their machines at the year’s end. Holsop-ple testified, “All of the time I had been there I had come in at approximately that time [viz., 12:30 P. M.]. I don’t know exactly what time it was. It may have been eleven o’clock, or twelve o’clock or one o’clock. I don’t know.” The testimony of the Kelsos was substantially the same as Holsopple’s on this point. Holsopple also testified, “Inasmuch as we had no time set when we should come in to clean our machines, we couldn’t understand why we were fired because we happened to get in at 12:30 when we would have had ample time to clean our machines and still get out of tlie plant early. That was discussed to quite an extent and the reason. We couldn’t understand the reason why we were discharged.” Holsopple also stated that the only explanation which was given to them by Weisbecker was “It is too late now. I want to close down the plant and get out.” Upon consideration of these circumstances, we are of the opinion that the Board’s conclusion that the real reason why these four men were discharged wa& their known membership in and activity on behalf of the Union, is supported by adequate evidence.
As to Bessie Holsopple, the following facts appear. She is the wife of Ah in Holsopple and began working for the Subins in 1935. She had been a member of tile American Federation of Hosiery Workers for several years and joined the Union in August, 1937. She was active in soliciting memberships.- While at the Arcadia plant she was employed as a “topper”. She was shifted to work upon a machine which was about to be sold, a fact which she testified was known generally throughout the plant. When the machine upon which she was working was sold, it was dismantled and taken from the plant. It was necessary therefore either to lay Mrs. Holsopple off or give her some other “topper’s” position. Her knitter, Leather-man, was placed upon another machine and continued to work at the Arcadia plant. There were girls working as toppers on the night shift who had been employed for a shorter period of time than Mrs. Holsopple. She was therefore entitled to re-employment upon the basis of seniority. She testified, however, that after the lay-off, she did not try very hard to gain employment elsewhere and did not have “a whole lot of time” because her only child was ill and she was engaged in looking after this child. Upon consideration of all the evidence we are of the opinion that the Board’s conclusion that Mrs. Holsopple was laid off and not re-employed because of her union activities is not unreasonable and is supported by adequate evidence. We therefore will order her reinstatement. We conclude, however, that her reinstatement should not be accompanied by back pay because by her own testimony her time following the lay-off was largely occupied by family duties as a matter of her own choice.
As to Richard Craner, a topper, it appears that he too was a.ctive in soliciting Union memberships. He signed up Superintendent Wcisbecker’s brother as a member. He testified that he was told at this time that if he was again active on behalf of the Union inside the plant that lie would be discharged. About January 7, 1938, his machine was sold, dismantled and taken from the plant. He Mas then laid off. Craner M'as senior to toppers who were retained by Arcadia. The record shows, however, that upon his leaving Arcadia he succeeded in getting other imployment. lie was earning $5.25 a day, or approximately $26.25 a week, when employed by the Subins. While at the Quakertown Hosiery Mills, his subsequent place of employment, he received $21 a week. The Subins contend that Craner never tried to obtain re-employment at their plant and that on one occasion Weisbecker sent for Craner to re-employ him but Craner could not be located. Craner himself testified that when he went to get his pay after his machine was dismantled, one of the office employees told him that lie should not return upon the following Monday but that he had never called up the plant or gone back to it in search of re-employment. He testified that immediately after his lay-off he was greeted by Superintendent Weisbecker with the sardonic salutation, “Hello, wise guy.” Upon consideration of all of the evidence, we conclude that there M'as sufficient evidence before the Board to support the conclusion that Craner’s services were dispensed with because he had assisted the Union. We do not deem his employment at a lessor rate of pay the equivalent to his employment at Arcadia. We will require his reinstatement as the Board has ordered.
As to Jackson, the record shows that he served as vice-chairman of the organizing committee of the Union and played a leading role in its drive for members at the Arcadia plant. His Union membership was known to Weisbecker. Fie had been employed steadily by the Subins for more than three years. He was laid off on December 17, 1937, because the plant discontinued the manufacture of the style of hosiery upon which he worked. He was re-employed on January 18, 1938. He was dismissed again by Weisbecker on February 2, 1938, with the explanation that his services were not needed because of the completion of the order on which he had been working. Jackson was a “legger”. He testified that when he was laid off that Superintendent Weisbecker told him that: he would send for him if there was work for him to do. He was not sent for. His machine was dismantled and taken out of the plant. It also appears that Jackson was entitled to employment as a matter of seniority over knitters who were not laid off but whose employment continued without interruption. The Board concluded that Jackson’s services were dispensed with by the Subins because of his membership in and activity on behalf of the Union. An examination of the record convinces us that there is adequate evidence to support such a conclusion.
As to Farrell, the record shows that he was employed as a legger on the night shift from March, 1936, until February 3, 1938. His activities on behalf of the Union were known to Weisbecker. He had been cautioned against seeking members for the Union inside the Arcadia plant. When he laid Farrell off, Weisbecker stated that he would be re-employed as soon as a job was available for him. Farrell’s machine also was sold. He was never re-employed. He testified that he asked Weisbecker if seniority was not controlling and why one Joseph Skzrat, a legger possessing less seniority than himself should be employed while he, Farrell, was without a position. He testified that Weisbecker said to him in respect of Skzrat’s employment, “Oh, there was just a little mistake.” It also appears that two •helpers were promoted to leggers after Farrell was laid off. We are of the opinion that there is adequate evidence to support the Board’s conclusion that Farrell was deprived of his position because of his Union activities.
As to Klebes, the record shows that he too joined the Union and assisted in its campaign for members. Klebes was a helper earning $15 a week but later was employed temporarily as a legger at $20 a week. We are of the opinion that in Klebes’ case the record plainly shows that his services were dispensed with because he was not an efficient legger and no knitter desired him as a helper. We conclude, therefore that the finding of the Board that Klebes was discharged because of his Union activities is without adequate evidence to support it.
As to Beluch it appears that he was employed by the Subins for about three years before he was laid off on January 3, 1938. At this time he was employed as a first helper at a rate of $15 a week. He had been active in attempting to organize the Arcadia plant for the Union and had secured members among the Subin employees. On January 3rd, Weisbecker told the other helper upon Beluch’s machine to go home and come back in the afternoon when he would be employed upon another machine. Beluch was told to go home and was not re-employed though he ranked all other helpers in point of seniority. We think that the Board was justified in concluding that Beluch was discharged because of his Union activities. He obtained temporary employment at the rate of $22 a week helping to erect hosiery machines. We will require his reinstatement as ordered by the Board.
Certain other matters require brief discussion. The Subins contend that the conduct of the examiner was such as to deny them an adequate hearing upon the charges filed against them and that therefore, if the Board’s order is carried out, they will be deprived of property without due process of law. They charge that the examiner led witnesses, was severe in his cross-examination of witnesses appearing for the Subins and allowed the Board great latitude in examination while closely restricting the other parties. The examiner is also accused of intimidation or attempted intimidation of witnesses by calling their attention to the fact that they were testifying under oath. Approximately twenty-five different instances have been cited by counsel for the Subins in which it is alleged that the examiner behaved improperly and without due regard for his judicial office. We have examined not only the circumstances specifically referred to but also the record as a whole. We cannot find that the actions of the examiner militated in any substantial manner against the right of the petitioners to bring forth their side of the case. We conclude that the conduct of the examiner was in nowise prejudicial to the petitioners and on the whole was judicial and not intemperate. We use the phrase “not intemperate” advisedly for upon at least one occasion counsel for the Subins saw fit to impute to the examiner a lack of good faith. The hearings seem to have been attended with some heat, but that heat was communicated to the examiner to a very small degree. We would not be justified in setting aside the order of the Board upon this ground. See National Labor Relations Bd. v. Stackpole Carbon Co., 3 Cir., 105 F.2d 167, 177.
Paragraphs 2 (b) and (c) of the order! of the Board will be modified in accordance with this opinion. All other pro-, visions of the order will be affirmed and a decree of enforcement will be entered. •
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_respond1_5_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 respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Your task is to determine which specific state government agency best describes this litigant.
UNITED STATES v. STATE ROAD DEPARTMENT OF FLORIDA et al.
No. 13213.
United States Court of Appeals Fifth Circuit.
May 30, 1951.
Rehearing Denied July 26,1951.
Holmes, Circuit Judge, dissented.
Cody Fowler, William A. Gillen, Tampa, Fla., George Earl Hoffman, U. S. Atty., Pensacola, Fla., for appellant.
John W. McWhirter, Atty. State Rd. Dept, of Fla., Tampa, Fla., T. Paine Kelly, Asst. Atty. Gen., Tallahassee, Fla., J. McHenry Jones, Pensacola, Fla., for ap-pellees.
Before HOLMES, BORAH and RUSSELL, Circuit Judges.
RUSSELL, Circuit Judge.
This suit, in the trial court was brought under the Federal Tort Claims Act by the State Road Department of the State of Florida against the United States of America to recover damages resulting from the partial destruction of, and damage to, the Thomas A. Jefferson Bridge across Pensacola Bay, Escambia County, Florida, caused when the bridge was struck by four liberty ships of the government during a severe rain and wind squall in Pensacola Harbor, where the ships were anchored.
In its answer the United States denied its negligence, and asserted separate defenses. The eleventh defense denied the right of the plaintiff to recover in any event the cost of constructing and remov"ing two wooden temporary detour bridges at and around the damaged and destroyed portions of the bridge, constructed for the purpose of opening the bridge to traffic ' while the bridge was being repaired. Following the receipt of answer to interrogatories propounded by the defendant by which it was shown that the Road Department had carried a policy of insurance upon the bridge and had been partially reimbursed by the Aetna Insurance Company of Hartford, Connecticut, the United States by its twelfth defense denied the right of the Road Department to maintain the suit and further asserted that the insurance carrier became subrogated to any claim of the Road Department to the extent of the sum of $215,000.00 paid as insurance; that suit for this sum must be brought by the insurance carrier as subro-gee in its own name as the real party in interest, and that the insured and paid Road Department was not entitled to sue for this sum. The defendant also set up additional defenses which in the present posture of the case it is not necessary to relate. Upon the plaintiff’s motion the Court struck the eleventh and twelfth defense. Thereafter the United States, alleging the existence and payment of insurance as set forth in the twelfth defense and asserting the right of subrogation of the insurance carrier and its right to participate in any recovery from the defendant to the extent of the payment made, and that the Road Department and the insurance carrier “are the real parties in interest in this suit,” and under the law of Florida “are authorized jointly to sue the defendant to recover for the alleged damage to the bridge,” moved that the insurer be made a party plaintiff to the suit. In answer to the motion plaintiff asserted that the right of the insurance carrier to be reimbursed out of any recovery of damages was a question only between the plaintiff and its insurance carrier which would be adjusted between the parties after the judgment, if any was recovered, and that the right of recovery of the entire damage vested in the plaintiff and therefore the insurance carrier was not an indispensable party plaintiff, nor the real party in interest. It was prayed that if any order be entered making the insurance carrier a party plaintiff that the joinder be required “solely in order that all parties for whose benefit the action is being prosecuted by the State Road Department shall appear of record as parties to the cause.” The Court, reciting the existence of the right of subrogation on the part of the insurance carrier and that its joinder would in no way prejudice either the plaintiff or insurance carrier, directed that the insurance carrier should join as a party plaintiff “so that all parties for whose benefit the action is being prosecuted shall appear of record as parties in this cause.” The insurance carrier thereafter filed a formal joinder expressly pursuant to the order of the Court and adopted the pleadings of the plaintiff. Thereafter the defendant filed answer and defenses to the same effect as theretofore filed to the complaint and asserted the additional defense that the claim of the sub-rogee was barred because it had not instituted or joined in the suit within one year after August 2, 1946 as required by the provisions of the Federal Tort Claims Act.
The trial of the case was had before the late United States Circuit Judge Curtis L. Waller of this Court, sitting by designation as United States District Judge. The facts and circumstances of the case were fully developed as is shown by consideration of the lengthy transcript of record now before us. His Honor, Judge Waller, entered detailed findings of fact and conclusions of law adjudging the defendant negligent and overruling its defenses of inevitable accident and “Act of God” and awarded the plaintiff judgment in the amounts of damages stipulated to be proper if recovery for the items claimed was allowed. These findings and conclusions are published in State Road Department of Florida v. United States, D.C., 85 F.Supp. 489. The judgment was for the cost of repairing the permanent bridge $233,211.19, and for the cost of constructing and removing the temporary detour bridges $128,-426.39. The total judgment awarded the Road Department of the State of Florida damages in the amount of $361,637.58. It was further ordered and adjudged that the co-plaintiff insurance carrier was entitled, as subrogee, to receive from the said State Road Department the sum of $215,000.00 out of the proceeds of the judgment. Provision for the payment of attorneys’ fees was also made.
By this appeal three specifications of error are presented by the United States. It is contended first, that the trial court erroneously imposed upon the masters and other officers in charge of the vessels involved prior to and during the squall in which the vessels dragged anchor and collided with the bridge a standard of exercising a very high or extra-ordinary degree of care; second, that Aetna’s claim as a plaintiff was barred by the limitation of the Federal Tort Claims Act, supra, and, third, that the cost of constructing and removing the two temporary detour wooden bridges was not an element of damage recoverable by the Road Department. We have intentionally refrained from repeating in detail the findings of fact and conclusions of law reached by the learned Judge sitting as U. S. District Judge designate. They fully appear in the published report appearing in 85 F.Supp. 489. Reference thereto will afford full understanding of all material facts and circumstances of the case and conclusions of law announced. These we approve in substance.
The first specification of error of the appellant assumes, we think, the application by the trial judge of a standard of care which is not supported when the findings of fact and conclusions of law are considered as a whole. The specification is predicated upon isolated statements appearing in the Court’s discussion. We are convinced from a consideration of the opinion of the Court as a whole that the judgment against the defendant-appellant resulted from no misapplication of law to the facts found by the Court. While some language of the Court may be such as to give grounds for argument upon appeal, we think that consideration of the determination of the Court as a whole demonstrates that such argument is not valid and should be rejected.
It appears from the record that the defense that the claim of the subrogee was barred by the limitations in the Federal Tort Claims Act, supra, had been determined upon motion prior to the trial. It is to the effect of this ruling that the second specification of error is directed. In brief, the contention is that since there were two “real parties in interest” and only one of them filed a timely suit the other is barred. Thus to support its position it was necessary for the appellant to bring into the litigation the additional “real party in interest” and assign to it an independent claim in order to invoke the bar of the Federal Tort Claims Act. Since the Road Department had not been fully reimbursed for its damages even to the main bridge structure, it was in any event entitled to assert a claim and in fact had done so,— prosecuting suit for the full amount. In these circumstances the question could in no event be broader than one of proper parties. The claim had been timely asserted. Determination of whether other additional parties were entitled or indeed required-to join in the suit was a matter distinct from the question of whether an action by one party, likewise entitled to sue, had been begun within the permitted time. In the present case there was only one foundation claim. That was for the damage to the bridge. This was the cause of action. The defendant had the right to bring in the subrogee as an additional party, but when brought in the subrogee had an equitable right to reimbursement, which could be enforced only by establishing thé same claim, or cause of action, of the Road Department. This had been timely filed, and was a sufficient and timely assertion of the claim for the entire damages. It is therefore clear that the fact that the subrogee was entitled to participate in the proceeds of the judgment when recovered furnishes no valid ground for adjudging this amount of the total recovery barred by the provisions of the statute.
That portion of the complaint which sought recovery of the cost of constructing and removing the temporary wooden bridges around those portions of the permanent bridge that was damaged by the defendant is predicated upon the obligation of the defendant State Road Department under a lease-purchase agreement which required the plaintiff to maintain and keep the bridge open at all times, and' obligated it to operate the bridge free of tolls as a part of the State Road system. There appears no dispute that the bridge in question is a State road and also a designated .and numbered U. S. Highway, No. 98. The Road Department relies upon cited statutes of Florida as well as common law right to recover such damages through its designated agency. The appellant contends that in.no event is this item of damage recoverable since if done by the State in its general governmental function to maintain the roads the expense is attributed in contemplation of law to the performance of that duty and not to any other circumstances, and further, that if the obligation be deemed to arise from the lease contract the damages are unrecoverable because too remote. It is also contended that since the statute limits recovery to only “the actual damage to the highway” it does not authorize the recovery of the damages here involved. It is conceded that the detour bridges were built to keep traffic open over the State and Federal highway, of which the damaged bridge was a part. The trial judge in sustaining the motion to strike this defense was of the opinion that a failure to consider the cost of constructing the temporary bridges as a necessary part of the over-all construction costs of the repairs of the permanent bridge would “be to blindly ignore the importance of present day use of arterial highways.” We are impelled to the same view. Under the circumstances here present, where a permanent bridge, which the State has the obligation to maintain and keep open to accommodate a heavy flow of traffic, is damaged, the cost of constructing temporary facilities essential to maintain the regular flow of traffic is so directly related to the injury to the bridge and such, a well understood and necessary consequence of such injury that such expense should be deemed legally a part of the damages sustained by the injury to the permanent bridge. So closely related are the repairs to the permanent bridge and the necessity for maintaining the traffic artery which it affords that we think the expense here in question constitutes “actual damage to the highway” within the fair intent and meaning of the Florida statute. Actual damages are compensatory damages. Expenses which naturally and reasonably follow from an injury to property are proper items of recovery. In recognition of this, Florida Courts permit recovery of the use value of automobiles while waiting repair, and the right to recover the rental expense for an automobile necessary to replace one negligently damaged is well recognized.
We have considered the authorities cited by the appellant, that the proper measure of damages for injury to a non-toll bridge is the cost of repairing and restoring it, as well as adjudications that the cost of maintaining a detour is not a proper item of recoverable damage for injury to a bridge. There can be no quarrel with the text authorities to the effect that the cost of repairing or restoring the bridge is generally the proper measure of damages for injury to it. However this does not reach the precise question here. The cases cited were determined upon consideration of statutes which restricted recoverable damages to such as “resulted to such bridge” or damages which the “bridge may sustain” and the Courts expressly construed the statutes there involved as not authorizing the recovery of consequential damages. The-Florida statute provides for .recovery of actual damage to the highway. “Highway” is a broader term than “bridge” or “structure.” We . have found no Florida decision which construes the Florida statute to exclude the recovery of consequential damages. It is our independent opinion that a fair and reasonable construction of the statute furnishes a basis for the recovery now involved since the damages claimed are the natural and reasonable consequence of the injury to the bridge, the highway.
None of the specifications of error or the arguments in support thereof show reversible error and the judgment of the trial court is
Affirmed.
. 28 U.S.C.A. § 921 et seq. [1948 Revised Judicial Code, 28 U.S.C.A. §§ 1346, 2671 et seq.].
. A statement of these as well as a more full statement of the eleventh and twelfth, defenses herein referred to may be found in State Road Department of State. of Florida v. United States, D.C., 78 F.Supp. 278.
. 28 U.S.O.A. § 942 [1948 Revised Judicial Code, 28 U.S.C.A. § 2401].
. “If the masters of these vessels were merely required to exercise ordinary or reasonable care after the officers of the vessels discovered their peril, then the defendant would doubtless be entitled to a judgment in its favor.”
“Ordinary care or reasonable care was not the test, but a very high degree of care and caution was required under the circumstances present at the time.”
The holding, “that the defendant had the burden of showing himself to be free from the commission or omission of any ' act that proximately contributed to the injury and if it has failed so to do the defenses of inevitable accident and vis major must fall.”
. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171.
. Cf. United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 53 S.Ct. 278, 77 L.Ed. 619.
. “The Department mil at all times during the continuance of this agreement, maintain the bridge and approaches in good repair and in sound operating condition, and will make all necessary repairs, renewals and replacements.
“The State Road Department shall maintain the roads and protect and preserve the same from trespass and injury * * * as is or will be liable to endanger the comfort and safety of the public travelling on said roads. Said Department shall make and maintain said roads safe for the use of sober, lawabiding citizens who desire to travel over same.”
. “The Department will at all times during the continuance of this agreement operate the said bridge free of tolls as a part of the State Road system.”
. Florida Statutes Annotated 1941 § 341.24 provides: “The state road department shall maintain the state roads and protect and preserve the same from trespass and injury and prevent such use of, and traffic on, said roads as is or will be liable to injure or destroy the same, and is or will be liable to endanger the comfort and safety of public travel on said roads. Said department shall make and maintain said roads safe for the use of sober, law-abiding citizens who desire to travel over the same.
“Any person shall be civilly liable to the department for the actual damage to the highway by reason of his wrongful act, which damage may be recovered by suit, and when collected shall be paid into the state treasury to the credit of the state road tax fund.”
Section 320.54(6), provides: “Civil liability. Whoever damages any state road by any trespass on, unlawful use of, or traffic over such road shall be civilly liable for the amount of such damage, which amount may be recovered at the suit of the state road department, and when recovered shall be turned into the state treasury and placed to the credit of the state road tax fund.”
. Citing as illustrative, The Manhattan, D.C., 10 F.Supp. 45, affirmed 3 Cir., 85 F.2d 427.
. Atchison, T. & S. F. Ry. Co. v. Jarboe Livestock Comm. Co., 10 Cir., 159 F.2d 527, 530; 25 C.J.S., Damages, § 25; 15 Am.Jur. Damages Section 66.
. Allen v. Hooper, 126 Fla. 458, 171 So. 513.
. Maggio v. M. F. Bradford Motor Express, Inc., La.App., 171 So. 859.
. 8 Am.Jur. (Bridges), Sec. 84, p. 973; 11 C.J.S., Bridges, § 100, p. 1137; 9 C. J., Bridges, Sec. 118, p. 499.
. State Highway Commission v. American Mutual Liberty Insurance Co., 146 Kan. 187, 70 P.2d 20; Shell Oil Co. v. Jackson County, Tex.Civ.App., 193 S.W.2d 268; State v. F. W. Pitch Co., 238 Iowa 208,17 N.W.2d 380.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Which specific state government agency best describes this litigant?
A. Police
B. Fire
C. Taxation
D. Human Services/Welfare/Health Care
E. Streets and Highways
F. Transportation
G. Election processes
H. Education
I. Other Service Activity
J. 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.
James David ELLER, Appellant, v. UNITED STATES of America, Appellee.
No. 18666.
United States Court of Appeals Ninth Circuit.
Jan. 21, 1964.
Rehearing Denied Feb. 25, 1964.
Dewey E. Turner, Palo Alto, Cal., for appellant.
Moody Brickett, U. S. Atty., Great Falls, Mont., and Richmond F. Allan, Asst. U. S. Atty., Billings, Mont., for ap-pellee.
Before MADDEN, Judge of the Court of Claims, and CHAMBERS and BROWNING, Circuit Judges.
BROWNING, Circuit Judge.
Appellant pleaded guilty to a charge of assisting in the escape of a prisoner in violation of 18 U.S.C.A. § 752. Since the prisoner was charged with a misdemeanor, appellant’s offense was likewise a misdemeanor, punishable by confinement for not more than one year. Appellant was sentenced under the Youth Corrections Act, 18 U.S.C.A. §§ 5005-5026, which provides for conditional release within four years and unconditional release within six years. § 5017 (c). Appellant’s subsequent motion under 28 U. S.C.A. § 2255, challenging the constitutionality of the Youth Corrections Act as applied to him, was denied by the District Court in reliance upon Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962), and Cunningham v. United States, 256 F.2d 467 (5th Cir. 1958). This appeal followed.
Since the District Court’s decision we have twice indicated our agreement with Carter and Cunningham. See Standley v. United States, 318 F.2d 700, 701 (9th Cir. 1963), and Young Hee Choy v. United States, 322 F.2d 64, 66 n. 7 (9th Cir. 1963). We now do so again.
In this court appellant also complains, for the first time, that he was not told prior to his plea of guilty and sentence that he might be sentenced under the Youth Corrections Act, and thus be subjected under his plea of guilty to a substantially longer period of restriction than that provided by 18 U.S.C.A. § 752.
The government responds that ■since this issue was not raised before the District Court it should not be considered on appeal (Standley v. United States, supra, 318 F.2d at 701) and that appellant’s remedy is in the District Court by way of a new motion under 28 U.S.C.A. § 2255 or an application under Rule 32 (d) of the Federal Rules of Criminal Procedure. Pilkington v. United States, 315 F.2d 204, 209 (4th Cir. 1963); Carter v. United States, supra, 306 F.2d at 285-286. See also Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963). We agree.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Plaintiff-Appellee, v. Bradford DAVIDSON, Defendant-Appellant.
No. 84-3263.
United States Court of Appeals, Sixth Circuit.
Argued March 13, 1985.
Decided April 17, 1985.
Timothy Howard (lead), Cleveland, Ohio, Edwin H. Jacobs, argued, Shaker Heights, Ohio, for defendant-appellant.
J. Matthew Cain, Asst. U.S. Atty., Cleveland, Ohio, Marcia Harris, argued, for plaintiff-appellee.
Before MERRITT, Circuit Judge, PHILLIPS and PECK, Senior Circuit Judges.
MERRITT, Circuit Judge.
In this two count mail fraud case arising from the efforts of the defendant, Bradford Davidson, to collect fire insurance on a commercial building which he caused to be burned down, the defendant appeals his conviction on grounds that the government did not prove through admissible evidence that the defendant caused government exhibits five and seven to be mailed or that they were, in fact, mailed. From this argument he argues further that the government failed to prove the required element of mailing or use of the mails, one of the two essential elements of a mail fraud case under 18 U.S.C. § 1341.
The two documents offered by the government to satisfy the mail requirement of the two counts are Exhibit 5, a document purportedly signed by the defendant employing an adjusting company to represent him in collecting the loss, and Exhibit 7, a schedule of items lost in the fire. The government's theory of the case is that these two documents were mailed by the defendant’s adjusting company to the insurance company’s adjuster. In order to prove the mailings, the government called the insurance company’s supervising adjuster, who was in charge of the office which received Exhibits 5 and 7. He testified that based on personal knowledge, as well as notations on the documents, they were received by his office in the mail.
The defendant argues that the documents are hearsay and are not admissible under the business records exception to the hearsay rule. He argues further that the documents do not establish, even if admissible, the mailing element because there is no evidence linking the documents directly to the defendant. The defendant argues that the adjusting company which sent the employment contract and the schedule to the insurance company’s adjuster could have been acting as an intermeddler and hence that there is no proof that the adjusting. company actually represented the defendant or that the defendant caused the mail to be used by the adjusting company.
We do not agree with these arguments. The insurance company’s supervising adjuster testified that Exhibits 5 and 7 were received in the mail in the regular course of business. With respect to Exhibit 7, the government introduced the envelope itself showing on its face that the schedule was stamped and mailed. The supervising adjuster was the office manager of the office which received and retained the records in the ordinary course of business. The defendant offered no rational argument against applying the business records exception to the hearsay rule. Therefore, Exhibits 5 and 7 are not inadmissible hearsay.
The defendant’s argument that the proof does not connect him to the mailings is likewise in error. Exhibit 5 is an employment contract between the defendant and the adjusting company that mailed Exhibits 5 and 7. From this evidence, the jury was entitled to infer that the defendant employed the adjusting firm and authorized it to take the steps necessary to collect the fire loss, including the use of the mails. The defendant should have reasonably anticipated that the adjusting company hired by him would use the mails, as it did, to collect the fire loss. Reasonable anticipation that the mails will be used satisfies the mailing element under section 1341. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). The Pereira case makes it clear that the defendant does not himself have to have dropped the letter in the mail. Mail fraud only requires that the defendant reasonably anticipate, or as a reasonable person foresee, the use of the mails.
From the evidence introduced by the government, the jury could have reasonably inferred that the defendant employed his own adjusting firm authorizing the firm to take whatever steps necessary to collect the fire loss, including the use of the mails. Exhibits 5 and 7 are documents from which the jury could infer that the adjusting company hired by defendant did, in fact, use the mails to forward to the insurance company’s adjusting firm schedules of losses and other items necessary to collect the loss.
Accordingly, the judgment of the District Court upon the jury verdict is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_weightev
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Minerva BRADLEY, I. A. Jackson, Jr., Rosa Lee Quarles, John Edward Johnson, Elihu C. Myers and Elizabeth S. Myers, Appellants, v. The SCHOOL BOARD of the CITY OF RICHMOND, VIRGINIA, H. I. Willet, Division Superintendent of Schools of the City of Richmond, Virginia, and E. J. Oglesby, Alfred L. Wingo and E. T. Justis, individually and constituting the Pupil Placement Board of the Commonwealth of Virginia, Appellees.
No. 8757.
United States Court of Appeals Fourth Circuit.
Argued Jan. 9, 1963.
Decided May 10, 1963.
Albert V. Bryan, Circuit Judge, dissented in part.
Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, Richmond, Va., on brief) for appellants.
Henry T. Wickham, Sp. Counsel, City of Richmond (J. Elliott Drinard, City Atty., Richmond, Va., and Tucker, Mays, Moore & Reed, Richmond, Va., on brief) for appellees, The School Board of the City of Richmond, Virginia, and H. I. Willet, Division Superintendent of Schools.
Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.
BOREMAN, Circuit Judge.
This is a school case involving alleged racially discriminatory practices and the maintenance of public schools on a racially segregated basis in the City of Richmond, Virginia. In September 1961 eleven Negro pupils, their parents and guardians instituted this action to require the defendants to transfer the pupils from Negro public schools to white public schools. The plaintiffs also pray, on behalf of all persons similarly situated, that the defendants be enjoined from operating racially segregated schools and be required to submit to the District Court a plan of desegregation. The District Court ordered that the individual infant plaintiffs be transferred to the schools for which they had applied. This appeal is based upon the refusal of the court to grant further injunctive relief.
Defendant, Virginia Pupil Placement Board, answered the complaint, admitting that plaintiffs had complied with its regulations pertaining to applications for transfer but denying discrimination and other allegations of the complaint. The defendants, School Board of the City of Richmond and the Richmond Superintendent of Schools, answered and moved to dismiss on the ground that sole responsibility for the placement of pupils rested with the Virginia Pupil Placement Board pursuant to the Pupil Placement Act of Virginia, Sections 22-232.1 through 232.17, Code of Virginia, 1950, as amended.
The defendants interpreted the bill of complaint as attacking the constitutionality of the Pupil Placement Act and the' motions to dismiss were grounded also on the theory that constitutionality should first be determined by the Supreme Court' of Appeals of Virginia or the case should be heard by a District Court of three judges. The court below correctly denied the motions to dismiss after determining that the constitutionality of the Act had not been challenged by plaintiffs.
The record discloses that the City of Richmond is divided into a number of geographically defined attendance areas for both white and Negro schools. These areas were established by the School Board prior to 1954 and have not been materially changed since that time. It is admitted that several attendance areas for white and Negro schools overlap. The State Pupil Placement Board enrolls and transfers all pupils and neither the Richmond School Board nor the city Superintendent of Schools makes recommendations to the Pupil Placement Board.
During the 1961-62 school term, 37 Negro pupils were assigned to “white” schools. For the 1962-63 school term, 90 ¿dditional Negro pupils had been so assigned. At the start of the 1962-63 school term, all of the “white” high schools had Negro pupils in attendance. Negro pupils also attend several of the “white” junior high schools and elementary schools.
Certain additional facts are clearly established by the record. -The City School Board maintains five high schools, three for whites and two for Negroes; five junior high schools for whites and four for Negroes; eighteen elementary schools for whites and twenty-two for Negroes. As of April 30, 1962, there were 40,263 pupils in' Richmond public schools, 23,177 Negroes, 17,002 whites and 84 non-whites of a race other than Negro but considered white for the purpose of assignment in the Richmond public school system. Only 37 Negroes were then attending schools which white children attended, 30 of those being in the “white” Chandler Junior High School. Three of the remaining seven were in attendance at the “white” John Marshall High School, one attended the “white” Westhampton Junior High School and three handicapped children attended the Richmond Cerebral Palsy Center. With the possible exception of the three last mentioned, these children had sought transfers from Negro schools and all but one were able to satisfy the residential and academic criteria which the Pupil Placement Board applies in case of transfers but not in case of initial enrollment. The remaining child had been admitted by court order in earlier litigation.
The 1961-62 Directory of the Richmond, Virginia, Public Schools shows “White Schools” in one division and “Negro Schools” in the other. The “White Schools” are staffed entirely with faculties and officials of the Caucasian race. The schools listed as “Negro Schools” are staffed entirely with faculties and officials of the Negro race.
Thus it is clear, as found by the District Court, that Richmond has dual school attendance areas; that the City is divided into areas for white schools and is again divided into areas for Negro schools; that in many instances the area for the white school and for the Negro school is the same and the areas overlap. Initial pupil enrollments are made pursuant to the dual attendance lines. Once enrolled, the pupils are routinely reassigned to the same school until graduation from that school. Upon graduation, the pupils are assigned in the manner found by the District Court to be as follows:
“* * * [A] ssignments of students based on promotion from an elementary school to a junior high school and from a junior high school to high school are routinely made by the Pupil Placement Board. These assignments generally follow a pattern, aptly described as a system of ‘feeder schools’, that existed prior to 1954. Thus, a student from a white elementary school is routinely promoted to a white junior high school and in due course to a white high school. A Negro student is routinely promoted from a Negro elementary school to a Negro junior high school and finally a Negro high school. In order to change the normal course of assignment based on promotion all students must apply to the Pupil Placement Board. The majority of the plaintiffs in the present case are such applicants.”
As of April 30, 1962, a rather serious problem of overcrowding existed in the Richmond Negro public schools. Of the 28 Negro schools 22 were overcrowded beyond normal capacity by 1775 pupils and the combined enrollments of 23 of the 26 white schools were 2445 less than the normal capacity of those schools. For the current 1962-63 school term, the applications for transfers from Negro to white schools of only 127 Negro pupils had been granted.
Four of the infant plaintiffs, who had completed elementary school, sought admission to the white Chandler Junior High School. After comparing test scores of these pupils with test scores of other pupils, the Pupil Placement Board denied the applications on the ground of lack of academic qualifications. These plaintiffs contended that pupils from white elementary schools in the same attendance area are routinely placed in Chandler Junior High and their scholastic attainments or qualifications are not scrutinized by the Pupil Placement Board. The District Court concluded that academic criteria were applied to Negro pupils seeking transfer based on promotion, which criteria were not applied to the white pupils promoted from elementary schools to junior high schools. This, said the court, is discriminatory and is a valid criticism of the procedure inherent in the system of “feeder schools”. The court further stated:
“Proper scholastic tests may be used to determine the placement of students. But when the tests are applied only to Negroes seeking admission to particular schools and not to white students routinely assigned to the same schools, the use of the tests can not be sustained. Jones v. School Board of the City of Alexandria, 278 F.2d 72 (4th Cir. I960).”
Another of the Negro plaintiffs, who was promoted from a Negro junior high school, sought admission to the “white” John Marshall High School. His application had been denied because he lived thirteen blocks from the John Marshall High School and only five blocks from a Negro high school. However, it was pointed out in the court below that this plaintiff lives in the attendance area of the John Marshall High School and, had he been a white student, he would have been routinely assigned there without considering the distance of his residence from that school or from another high school. The District Court said: “ * * Residence may be a proper basis for assignment of pupils, but it is an invalid criteria when linked to a system of ‘feeder schools’. Dodson v. School Board of the City of Charlottesville, 289 F.2d 439 (4th Cir. 1961).”
The remaining five plaintiffs sought transfers from the Graves Junior High School (Negro) to the “white” Chandler Junior High School. They were denied transfer by the Pupil Placement Board because of lack of academic qualifications. The evidence showed that the same standards for determining transfers, upon application, from one junior high school to another junior high school were applied by the Board indiscriminately to both white and Negro pupils. The District Court stated:
« * * * Were this the only factor in this phase of the case, the issue would involve only judicial review of the decision of an administrative board. However, the situation of these plaintiffs must be considered in the context of the system of ‘feeder schools’, which routinely placed them in the Graves Junior High School while white students routinely were placed in Chandler Junior High School. The application of scholarship qualifications under these circumstances is discriminatory. Green v. School Board of the City of Roanoke [304] F.2d [118] (4th Cir., May 22, 1962).”
With respect to a determination of the rights of all of the infant Negro plaintiffs, the District Court held:
“The foregoing facts and conclusions of law require the admission of the plaintiffs to the schools for which they made application.”
An appropriate order was entered enjoining and restraining the defendants from denying the infant plaintiffs, therein named, admission to the schools for which they had made application. The defendants have not appealed from this order.
It follows that each infant plaintiff has been granted the relief which he or she individually sought. But the District Court, although expressing its disapproval of the “feeder school system” as now operating in the City of Richmond, denied further injunctive relief. The case was ordered retained on the docket for such further relief “as may be appropriate”.
The conclusion of the District Court that a “reasonable start toward a nondiseriminatory school system” had been made appears to have been based primarily upon consideration of four factors discussed in its opinion as follows:
“Rigid adherence to placement of students by attendance areas has been modified in four respects. First, the Chairman of the Pupil Placement Board testified that any Negro child applying for enrollment in the first grade of a white public school in his attendance area is assigned to that school. Second, the Superintendent of Schools testified that George Wythe High School and John Marshall High School had been constructed to accommodate all high school students in their respective attendance areas. Counsel stated in argument that six Negro students had applied for admission to George Wythe High School for 1962 and all had been accepted. Third, a Negro student presently attending a white school, upon promotion to a higher school, is routinely assigned to a white school. Fourth, some Negro-students have been assigned to schools in white attendance areas.”
In the context of this case the principal questions to be determined may be stated as follows: (1) Are these four basic factors cited by the District Court sufficient to evidence a reasonable start toward maintaining a non-discriminatory school system and consistent with the true concept of equal constitutional protection of the races; and (2) should the court have granted further injunctive relief? We think question (1) must be answered in the negative and question (2) in the affirmative in view of the discriminatory attitude displayed by the Pupil Placement Board toward the transfers sought by the infant plaintiffs in the instant case and which transfers, denied as the result of discriminatory application of residential and academic criteria, were effected only through this protracted litigation.
It is notable that there is no assertion here, as in some of the other school cases, of a defense based upon a claim that a reasonable start has been made toward the elimination of racially discriminatory practices coupled with a suggestion that additional time, consistent with good faith compliance at the earliest practicable date, is necessary in the public interest. Instead, the answer of the City school authorities denied that anything done or omitted by them had given rise to the present litigation. The answer of the Pupil Placement Board admitted that the plaintiffs had complied with its administrative procedures but denied and demanded strict proof of racial discrimination.
One of the interrogatories served by the plaintiffs was: “What obstacles, if any, are there which will prevent the racially non-discriminatory assignment of students to public schools in the City of Richmond at the commencement of the 1962-1963 school session?” The local school authorities side-stepped the question by claiming to be unable to answer because all power to assign students to schools had been vested by law in the Pupil Placement Board. That Board replied to the interrogatory as follows: “ * * * [T]hat to the extent that such question implies discrimination, such implication is denied and that such question lacks sufficient specificity to evoke an intelligent answer which does not involve broad conclusions or have argumentative deductions. Aside from that, and under Brown v. Board of Education, these defendants know of no reason ivhy students should not be assigned to public schools without discrimination on the ground of race, color, or creed.” (Emphasis added.)
The Superintendent of Schools testified that the City School Board had not attempted to meet the problem of overcrowded schools by requesting that Negro-pupils in overcrowded schools in a given area be assigned to schools with white pupils. He stated that some new schools and additions to existing schools had been; provided. The record discloses that the-earlier litigation, Warden v. The School Board of the City of Richmond, referred to in our footnote 3, was instituted on-September 2, 1958. At a special meeting held on September 15, 1958 (approximately two weeks after the beginning of the school term), the School Board voted to request the Pupil Placement Board to transfer the pupils then attending the Nathaniel Bacon School (white) to the East End Junior High School (white), and that a sufficient number of pupils be transferred from the George Mason (Negro) and Chimborazo (Negro) schools to-the Nathaniel Bacon building to utilize its capacity, thus converting Nathaniel Bacon to a Negro school.
The attitude of the City school authorities, as disclosed by the Superintendent of Schools in his testimony, is and has. been “that the state law took out of the hands of the School Board and the Superintendent of Schools any decision relating to the integration of schools [and that} * * * it has been a feeling of both the School Board and the Administration that any conflict that might exist between the state and federal law should be . decided by the Courts, not by the School Board and the Administration.”
The following is taken from the testimony of the Chairman of the Pupil Placement Board:
“Q. Well, what do you do where you have overlapping school zones and school areas?
“A. You have got that, of course* in Richmond.
“Q. Yes.
“A. Normally, I would say fully 99 per cent of the Negro parents who are entering a child in First Grade prefer to have that child in the Negro school. Judging by the small number of applications we get, that must be true. Now, we do not think that this Board was appointed for the purpose or that the law required the attempt on our part to try to integrate every child possible. What we thought we were to do was to be completely fair in considering the requests of Negroes, we will say, to go into White schools, but certainly not trying to put those in that didn’t want to go in.
“Now, when a Negro parent asks for admission of his child in the First Grade of a White school, very clearly he is asking for desegregation or for integration, or whatever you want to call it, and he gets it. And it is true that in general there will be two schools that that child could attend in his area, one White and one Negro, and we assume that the Negro wants to go to the Negro school unless he says otherwise, but if he says otherwise, he gets the other school.” (Emphasis supplied.)
It is true that the authority for the enrollment and placement of pupils in the State of Virginia has been lodged in the Pupil Placement Board unless a particular locality elects to assume sole responsibility for the assignment of its pupils. The School Board of the City of Richmond has assumed no responsibility whatever in this connection. It does not even make recommendations to the Pupil Placement Board as to enrollments, assignments or transfers of pupils. It here defends charges against it of racial discrimination in the operation of the City’s schools on the ground that the sole responsibility is that of the State Board. At the same time the system of dual attendance areas which has operated over the years to maintain public schools on a racially segregated basis has been permitted to continue. Though many of the Negro schools are overcrowded and white schools are not filled to normal capacity, the only effort to alleviate this condition has been to provide new buildings or additions to existing buildings, a move obviously designed to perpetuate what has always been a segregated school system.
It is clear that the pupil assignments are routinely made by the Pupil Placement Board. The Chairman of that Board says that now initial enrollments are on a voluntary basis and a Negro child may be enrolled in a white school upon request. But in the absence of a request, the long established procedure of enrollment of Negro children in Negro schools and white children in white schools persists. Then the “feeder” system begins to operate and the only means of escape is by following the prescribed administrative procedure of filing requests or applications for transfer. The difficulties to be encountered in pursuing this course are graphically demonstrated by the experiences of the infant plaintiffs in this litigation. They were able to escape from the “feeder” system only after the District Court made possible their release by ordering transfers.
A Negro child, having once been caught in the “feeder” system and desiring a desegregated education, must extricate himself, if he can, by meeting the transfer criteria. As this court said in Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118, 123 (4th Cir. 1962): “ * * * These are hurdles to
which a white child, living in the same area as the Negro and having the same scholastic aptitude, would not be subjected, for he would have been initially assigned to the school to which the Negro seeks admission.”
It was pointed out in Jones v. School Board of City of Alexandria, Virginia, 278 F.2d 72, 77 (4th Cir. 1960), that, by reason of the existing segregation pattern, it will be Negro children, primarily, who seek transfers. The truth of this statement is evidenced by the fact that in Richmond only 127 Negro children out of a total of more than 23,000 are now attending previously all-white schools. This court further said in Jones, supra: “Obviously the maintenance of a dual system of attendance areas based on race offends the constitutional rights of the plaintiffs and others similarly situated * * * ” 278 F.2d 72, 76.
In recent months we have had occasion to consider the legality of other “feeder” systems found in operation in the public schools of Roanoke County, Virginia, and in the City of Roanoke, Virginia. See Marsh v. County School Board of Roanoke County, Va., 305 F.2d 94 (4th Cir. 1962), and Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118 (4th Cir. 1962). In those cases, in opinions prepared by Chief Judge Sobeloff, the unconstitutional aspects of the systems there in operation were discussed in the light of the -decisions of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and in the light of numerous prior decisions of this and other courts. We find it unnecessary to again cite or review the pertinent decisions applicable to the maintenance of racially segregated school systems. In the Marsh and Green cases we reached the conclusion that injunctive relief, not only for the individual plaintiffs but for those who might find themselves confronted with the same problems, was justified.
A start has, indeed, been made to end total segregation of the races in the Richmond schools. The first step has been taken, one which, no doubt, was distasteful to those who are traditionally and unalterably opposed to an integrated school system. But, upon this record and from the statements of the school officials, we find nothing to indicate a desire or intention to use the enrollment or assignment system as a vehicle to desegregate the schools or to effect a material departure from present practices, the discriminatory character of which required the District Court to order relief to the infant plaintiffs before it. In the present status in which the case was left by the District Court, the school authorities are yet free to ignore the rights of other applicants and thus to require the parents of new applicants to protest discriminatory denials of transfers, to require an infant applicant with his or her parents to attend a hearing on the protest which is not likely to be held earlier than August of 1963, and then to require the applicants to intervene in the pending litigation (possibly to be met with defensive tactics calculated to result in delay), the applicants fervently hoping to obtain relief from the court not long after the beginning of the 1963-64 school session if such relief is to be meaningful.
The School Board of the City of Richmond has abdicated in favor of the Pupil Placement Board leaving the latter with a school system which, in normal operation, has demonstrated its potential as an effective instrumentality for creating and maintaining racial segregation. Nearly nine years have elapsed since the decisions in the Brown v. Board of Education cases and since the Supreme Court held racial discrimination in the schools to be unconstitutional. The Richmond school authorities could not possibly have been unaware of the results of litigation involving the school systems of other cities in Virginia, notably Norfolk, Alexandria, Charlottesville and Roanoke. Despite the knowledge which these authorities must have had as to what was happening in other nearby communities, the dual attendance areas and “feeder” system have undergone no material change.
Assignments on a racial basis are neither authorized nor contemplated by Virginia’s Pupil Placement Act. We are told that initial assignments are now made on a purely voluntary basis but the Placement Board assumes that a Negro child prefers to attend a school with children of his own race and he is so assigned unless otherwise requested. Richmond’s administration of her schools has been obviously compulsive and it is evident that there has been little, if any, freedom of choice.
“Though a voluntary separation of the races in schools is uncondemned by any provision of the Constitution, its legality is dependent upon the volition of each of the pupils. If a reasonable attempt to exercise a pupil’s individual volition is thwarted by official coercion or compulsion, the organization of the schools, to that extent, comes into plain conflict with the constitutional requirement. A voluntary system is no longer voluntary when it becomes compulsive.” See Jeffers v. Whitley, 309 F.2d 621, 627 (4th Cir. 1962).
Notwithstanding the fact that the Pupil Placement Board assigns pupils to the various Richmond schools without .recommendation of the local officials, we do not believe that the City School Board can disavow all responsibility for the maintenance of the discriminatory system which has apparently undergone no basic change since its adoption. Assuredly it has the power to eliminate the dual attendance areas and the “feeder” system which the District Court found to be primarily responsible for the discriminatory practices disclosed by the evidence. It would be foolish in the extreme to say that neither the City School Board nor the Pupil Placement Board has the duty to recognize and protect the constitutional rights of pupils in the Richmond schools. That there must be a responsibility devolving upon some agency for proper administration is unquestioned. We are of the opinion that it is primarily the duty of the School Board to eliminate the offending system.
In these circumstances, not only are the individual infant plaintiffs entitled to relief which has been ordered but the plaintiffs are entitled, on behalf of others of the class they represent and who are similarly situated, to an injunction against the continuation of the discriminatory system and practices which-have-been found to exist. As we clearly stated in Jeffers v. Whitley, 309 F.2d 621, 629 (4th Cir. 1962), the appellants are not entitled to an order requiring the defendants to effect a general intermixture of the races in the schools but they are entitled to an order enjoining the defendants from refusing admission to any school of any pupil because of the pupil’s race. The order should prohibit the defendants’ conditioning the grant of a requested transfer upon the applicant’s submission to futile, burdensome or discriminatory administrative procedures. If there is to be an absolute abandonment of the dual attendance area and “feeder”' system, if initial assignments are to be on a nondiscriminatory and voluntary basis, and if there is to be a right of free-choice at reasonable intervals thereafter* consistent with proper administrative procedures as may be determined by the defendants with the approval of the District Court, the pupils, their parents and the public generally should be so informed.
If, upon remand, the defendants desire to submit to the District Court a more definite plan, providing for immediate steps looking to the termination of the discriminatory system and practices “with all deliberate speed,” they should not only be permitted but encouraged to do so.
The District Court should retain jurisdiction of this case for further proceedings and the entry of such further orders as are not inconsistent with this opinion.
Reversed in part and remanded.
. Of eleven original pupil plaintiffs, one was assigned by the Pupil Placement Board to an integrated Junior High School to which he had made application before the hearing in the District Court. His case became moot.
. Raised below (but not involved in this appeal) was the issue as to the joinder of the Richmond School Board and Superintendent of Schools as parties defendant. Correctly, we think, the District Court held:
“ * * * The State Pupil Placement Board has authority over the placement of pupils, and the local officials refrain from making recommendations to the Board, but approximately 98 per cent of the placements are made routinely as a result of the regulations of the School Board pertaining to attendance areas. The evidence shows that the State Pupil Placement Board has no inclination to vary these attendance areas, although undoubtedly it has authority to do so. In view of this situation, the School Board and the Superintendent of Schools are proper parties.”
. On September 2, 1958, a suit styled Lorna Renee Warden et al. v. The School Board of the City of Richmond, Virginia, et al. was instituted in the District Court, praying, inter alia, that a permanent injunction be entered restraining the Richmond School Board and its division Superintendent of Schools from any and all actions that regulate or affect, on the basis of race or color, the admission, enrollment or education of the infant plaintiffs, or any other Negro child similarly situated, to and in any public school operated by the defendants.
That suit was decided on July 5, 1961. The District Court ordered that the then one remaining Negro plaintiff be transferred from the Negro school located five miles from her home and admitted to the white school in her neighborhood. However, the court denied class relief, stating: “There is no question as to the right of the infant plaintiff to be admitted to the schools of the City of Richmond without discrimination on the ground of race. She is admitted, however, as an individual,; not as a class or group; and it is as an individual that her rights under the Constitution are asserted.”
The court refused to grant a permanent, injunction and dismissed the case from the docket.
. The ease to which the District Court referred is styled Green v. School Board of City of Roanoke, Virginia, and is now reported in 304 F.2d 118.
. In its written opinion the District Court stated as follows:
“The plaintiffs prayed that the defendants be enjoined from continuing discrimination in the city schools and that the School Board be required to submit a desegregation plan. The Court has weighed all of the factors presented by the evidence in this case and finds that the defendants have taken measures to eliminate racially discriminatory enrollments in the first grade. Apparently they are eliminating discriminatory enrollments in George Wythe High School [white] and they are routinely assigning Negro students in white junior high schools to white high schools.
“While the School Board has not presented a formal plan of desegregation, the Court finds that the defendants have made a reasonable start toward a nondiscriminatory school system resulting in the attendance of 127 Negro students in white schools for the 1982-1963 school term. In view of the steps that have been taken in this direction, the Court concludes that the defendants should be allowed discretion to fashion within a reasonable time the changes necessary to eliminate the remaining objectionable features of the system of ‘feeder schools’.
“In Brown v. Board of Education, 349 U.S. 294, 300 [75 S.Ct. 753, 99 L.Ed. 1083] (1955), the Supreme Court stated ‘Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’ The Court is of the opinion that the relief decreed in this case is sufficient at this time in view of the evidence presented. The refusal of broad injunctive relief now is not to be construed as approval to continue the ‘feeder school system’ as it is now operated. See Hill v. School Board of the City of Norfolk, Virginia, 282 F.2d 473 (4th Cir. 1960) ; Dodson v. School Board of the City of Charlottesville, 289 F.2d 439 (4th Cir. 1961).
“This case will be retained on the docket for such further relief as may be appropriate.”
. Va.Code Ann. §§ 22-232.1-232.17 (Supp. 1960).
. Va.Code Ann. §§ 22-232.18-232.31 (Supp. 1960).
. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_1_4
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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 "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
John Robert SHAW, as Executor of the Estate of Anthony Alma Rahner, deceased, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY and Southern Railway Company, Appellees.
No. 7226.
United States Court of Appeals Fourth Circuit.
Argued Oct. 8, 1956.
Decided Nov. 7, 1956.
Thomas E. McCutchen, Columbia, S. C. (Whaley & McCutchen, Columbia, S. C., on brief), for appellant.
Frank G. Tompkins, Jr., Columbia, S. C., for appellee Southern Ry. Co.
Julius W. McKay and Douglas McKay, Columbia, S. C., for appellee Atlantic Coast Line R. Co.
Before PARKER, Chief Judge, and SOPER and SOBELOFF, Circuit Judges.
SOPER, Circuit Judge.
This suit against the Atlantic Coast Line Railroad Company and the Southern Railway Company was brought by the Executor of the estate of a conductor employed by the Southern, who' was killed by a train of the A.C.L. in attempting to cross its tracks at 4:30 A.M. on December 21, 1952, at Hardeeville, South Carolina. This suit against A.C.L. claimed damages for wrongful death and was brought under the Lord Campbell’s Act of South Carolina, §§ 10-1951 and 10-1952 of the South Carolina Code of 1952. The suit against Southern on the same cause of action was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, since the deceased was engaged in the performance of his duties as its employee when he was killed. At the conclusion of the plaintiff’s evidence at the trial in the District Court both defendants moved for directed verdicts in their behalf but the District Judge overruled the motions in order to afford the plaintiff the opportunity to cross-examine the defendants’ witnesses. Similar motions were made at the end of the defendants’ evidence and were then granted, the Judge being of the opinion that the sole cause of the accident was the action of the deceased in trying to cross the railroad tracks when he knew that a rapidly moving train was approaching.
The scene of the accident was a small wayside station of A.C.L. at Hardeeville, which was maintained by A.C.L. but was used by both railroads since the Southern makes use of the tracks of A.C.L. from this point south to Jacksonville, Florida. The station building had a frontage of 90 feet and a depth of 25 feet. Two tracks of A.C.L. ran north and south close to its west side. The easternmost rail of the northbound track was located 16% feet from the station and the west rail of the southbound track 35 feet therefrom. A single track of the Southern was located 31 feet west of the westernmost rail of A.C.L., and the distance from Southern’s track to the northbound track of A.C.L., on which the man was killed, was 44 feet 4 inches. The intervening space between the tracks of the two railroads was a park-like area with some growing trees and shrubbery. This area was maintained by A.C.L. but the Southern had the right to put the property and its appurtenances in good condition if A.C.L. failed to perform this duty but had never requested A.C.L. to remove the trees and shrubbery between the tracks. The station was in the charge of a lever telegraph operator of A.C.L. who regulated the movement of the trains at this point for both railroads.
The accident occurred when an A.C.L. express train going north on the track nearest the station at something more than 70 miles per hour passed a motionless Southern train which was headed south and had come to a stop at the station on its own track a few moments before. The station master had had 2 minutes previous notice of the arrival of the Southern train and about 8 minutes notice of the arrival of the A.C.L. train, which was not scheduled to stop at the station, and had given it the green light to go through without reducing speed. In the meantime the station master, in accordance with a rule of his railroad, which required the movement of the train to be protected under such conditions, had supervised the crossing of the A.C.L. tracks by three persons who had come to meet a deaf and dumb child, the only person to arrive on the Southern train. These persons had crossed and were standing alongside the Southern train when the A.C.L. train came through.
The Southern train was in charge of Anthony A. Rahner, the conductor who was killed. He was 69 years of age and had been employed by the Southern for more than 40 years. Upon the arrival of his train he and his flagman alighted on the ground. Rahner instructed the flagman to warn the porter of the train not to let the defective child be run over. At that moment the A.C.L. express was not more than 30 seconds away; and the flagman, standing on the ground, heard its warning signal and the great noise of its three diesel engines and 15 cars, and saw the reflection of its double headlights as it rushed towards the station.
It was the duty of the deceased conductor to cross from his train over the main line of the A.C.L. to the station to deliver mail and receive a clearance order permitting his train to proceed. After speaking to the flagman he walked a short distance ahead to the baggage car of his train, took some mail from the man in charge and started towards the station, and while he was still in the park-like area he broke into a run in an evident attempt to cross the tracks of the A.C.L. train but was hit and killed before he could cross the northbound track on which the express was running. The flagman saw him run across the park-like area but because of the shrubbery lost sight of him before he reached the A.C.L. tracks and was struck. This account of the accident was given by the flagman, a witness for the plaintiff. It was supported by the testimony of the baggage man on the Southern train, a witness for the defendant, who was standing in the door of the baggage car and handed the mail to his conductor and then watched him run across the intervening space of the A.C.L. tracks until he was hit by the train. This witness testified that he also was aware that the express train was approaching. The engineer on the A.C.L. express was on the right side of the leading diesel and did not see the conductor, but the brakeman on the left side caught sight of the man an instant before he was struck.
Upon this state of the record the appellant contends that the Southern was guilty of negligence because it failed to furnish Rahner a safe place to work, in that it permitted the trees and shrubbery to remain in the intervening space knowing that Rahner was obliged to cross the A.C.L. tracks in the performance of his duties without special notice of the approach of trains. It is pointed out that the Southern train was behind its schedule and that it was the duty of the conductor to go to the station as quickly as possible for his clearance in order to expedite the movement, and it is said that it is reasonable to infer that in this instance his view was obscured by the shrubbery so that he was unaware of the danger until it was too late.
The undisputed evidence in the case is to the contrary. Rahner was a trainman of many years experience, familiar with the conditions existing at the station. He had been on the same run for more than three years and had taken his train through on many previous occasions. He knew that high speed A.C.L. trains passed through the station and that southbound Southern trains stopped at the station to permit A.C.L. trains to pass. He showed his awareness of the oncoming train that morning by warning his flagman to look out for the child. Even more significant is the evidence that, in common with other railroad men present, he actually knew that the train was rushing toward the station from the thunderous noise of the engines and cars and the flashing of the headlights. Furthermore, the growth between the tracks could not have contributed to the catastrophe, as is shown by the uncontradicted evidence of witnesses on both sides. The photographs submitted by the plaintiff show that the trees and shrubbery did not grow immediately alongside the A.C.L. tracks and there was ample space, not less than 25 feet, between the trees and the tracks within which a train approaching the station from the south could be seen for more than a mile.
The appellant also rests its case upon the statutory rule, 45 U.S.C.A. § 53, that, under the Federal Employers’ Liability Act, contributory negligence of a plaintiff employee does not bar recovery for injuries but merely goes to the diminution of the damages. It is said that even if the deceased was negligent in running upon the A.C.L. tracks as described, there was negligence on the part of both railroads in allowing the train to pass through that station at high speed while a Southern train was standing at the station to receive and discharge passengers, although the station operator had previous knowledge that both trains were about to arrive.
That there was an element of danger in such a situation is obvious but it does not follow that the operation was negligent. It is common knowledge that through trains customarily pass small wayside stations without stopping or slowing down; and the custom was recognized in a rule of the A.C.L. which provided that trains and engines must run at reduced speed in passing a train receiving or discharging passengers at a station, and that trains must not pass between such a train and the platform at which passengers are being received or discharged, except where proper safeguards are provided or the movement is properly protected. The evidence shows that under this rule it became the duty of the station operator to watch over and supervise the movement of passengers across the A.C.L. tracks upon the approach of a through train and that the operator performed this duty on this occasion. No evidence was offered to show that this practice was considered by experienced railroad men, or by anyone, to be negligent or improper. No one at the station that morning was actually exposed to danger except the most experienced railroad man present, and he only because of his own conduct. As the District Judge held, the passing of the train created a condition of which the deceased was well aware but refused to recognize, and hence it must be held that his death was not due to the great speed of the train but to his own voluntary act. See Hartley v. Atlantic Coast Line R. Co., 5 Cir., 194 F.2d 590; Chesapeake & Ohio R. Co. v. Burton, 4 Cir., 217 F.2d 471; Moore v. Southern Ry. Co., 163 S.C. 342, 161 S.E. 525, reversed 284 U.S. 581, 52 S.Ct. 38, 76 L.Ed. 503; Wolfe v. Hen-wood, 8 Cir., 162 F.2d 998; Murray v. Atlantic Coast Line R. Co., 4 Cir., 233 F.2d 214; Atlantic Coast Line R. Co. v. Glenn, 4 Cir., 198 F.2d 232; New York C. & St. L. R. Co. v. Boulden, 7 Cir., 63 F.2d 917; Drawdy v. Atlantic Coast Line R. Co., 75 S.C. 308, 55 S.E. 444.
The same considerations apply in the case against A.C.L. and, in addition, it has the defense of contributory negligence on the part of the deceased, which is conclusively established. It is contended that negligence on the part of the A.C.L. was shown because the evidence as to whether the bell of the engine was rung as the train neared the station is somewhat uncertain; but this is immaterial, for it is certain that the ringing of the bell would have added nothing to the warning which the deceased was given by the noise and lights of the approaching train.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
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songer_geniss
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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".
UNITED STATES of America, Appellant, v. 78.40 ACRES OF LAND, MORE OR LESS, Situate IN McKEAN COUNTY, STATE OF PENNSYLVANIA, and Laurence J. Hazzard et al.
No. 16474.
United States Court of Appeals Third Circuit.
Argued Oct. 5, 1967.
Decided Oct. 24, 1967.
Edmund B. Clark, Dept, of Justice, Land and Natural Resources Division, Appellate Section, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Lawrence G. Zurawsky, Asst. U. S. Atty., Pittsburgh, Pa., Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellant.
John F. Potter, MacDonald, Illig, Jones & Britton, Erie, Pa. (William F. Illig, Erie, Pa., on the brief), for appellees.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
In this condemnation case the Government seeks on appeal to convict the trial judge of error in instructing the jury, as he did, that it might infer from the Government’s failure to call as a valuation witness one of its employees, who had made an initial valuation of the land taken, that his testimony, if produced, would have been detrimental to the Government’s position. It appears, however, that at the conclusion of the charge, in answer to a direct inquiry by the trial judge, counsel for the Government stated that he had no suggestions or corrections as to the charge. Under these circumstances, the Government is precluded from attacking in this court the portion of the trial judge’s charge referred to. Arnold v. Loose, 3 Cir. 1965, 352 F.2d 959, 963-964. We, therefore, do not reach and do not consider the question which the Government seeks to raise as to the right of a claimant to comment to the jury on the Government’s failure to call as a valuation witness an employee who had made the initial valuation upon which was based the estimate of just compensation for the land taken which is required by 40 U.S.C.A. § 258a(5).
The judgment of the district court will be affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_casetyp1_2-2
|
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 "civil rights".
William E. KNUCKLES, Appellant in No. 18761, Arthur L. McKEE, Isiah Green and Joseph Tillery v. Arthur X. PRASSE, Commissioner of Correction, Commonwealth of Pennsylvania and Joseph R. Brierley, Supt. and A. T. Rundle and Clarence R. Wolfe and David N. Meyers, Appellants in No. 18829. Appeal of Arthur L. McKEE in No. 18,762. Appeal of Isiah GREEN, in No. 18,763. Appeal of Joseph TILLERY, in No. 18,764. James WASHINGTON, Appellant in No. 18,765, v. J. R. BRIERLEY, Supt., Appellant in No. 18,830.
Nos. 18761-18765, 18829, 18830.
United States Court of Appeals, Third Circuit.
Argued Dec. 1, 1970.
Decided Dec. 28, 1970.
Walter L. Foulke, Philadelphia, Pa., for appellants.
Herbert Monheit, Asst. Atty. Gen., Harrisburg, Pa., by Mabel G. Turner, Sp. Asst. Atty. Gen., Philadelphia, Pa., on the brief, for appellees.
Before KALODNER, SEITZ and ALDISERT, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Before us are cross-appeals from a judgment of the district court granting partial relief sought under the Civil Rights Act, 42 U.S.C.A. § 1983 by inmates of a state prison who are followers of The Honorable Elijah Muhammad, often called Muslims or Black Muslims, a sect of the Islamic religion. The district court ordered the prison officials to permit collective religious services conducted by accredited ministers of their faith, “so long as the doctrines espoused by the ministers are identical to those Minister [Jeremiah] Shabazz testified to during the court proceedings.”
The court found it was not mandatory that the prison authorities make available Muslim periodicals and books requested by the plaintiffs because these writings “could be interpreted as an endorsement of a concept that whites generally and prison authorities should be defied by Muslim prisoners even when legal orders or demands are made.” The court explained that “such a view is not an appropriate interpretation of Black religious Muslim doctrine * * * Since the literature could be subject to inferences urging such defiances if not interpreted by a trained Muslim minister, I rule that it is not mandatory that the prison authorities make available to prisoners the writings.” The court specifically found that “in the hands of the inmate who is not fully informed of the Black Muslim doctrine * * * the literature could constitute a ‘clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly function of the institution. Long v. Parker, 3 Cir., 390 F.2d 816, 820, 822.’ ” Knuckles v. Prasse, 302 F.Supp. 1036, 1058, 1059 (Ed.Pa.1969). This same reasoning apparently governed its decision relating to the wearing of medals.
Similarly, we will not disturb the two conclusions that the plaintiffs had been subjected to “cruel and unusual punishment” for two and one-half days. We reject the appeal of the prison authorities grounded on the argument of insufficient evidence and the plaintiff-appellants’ argument that the court erred in not finding that the conditions persisted beyond this limited time, and that they were entitled to money damages as a matter of law.
This court has previously said in Gittlemacker v. Prasse, 428 F.2d 1, 4 (3 Cir. 1970): “To determine with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests.” We conclude that The Honorable A. Leon Higginbotham, Jr., the trial judge, approached his task of striking this proper balance with outstanding sensitivity, understanding and perception. The district court demonstrated an awareness that “[i]n the case of a prisoner, the determination of what constitutes an actionable claim may become difficult since imprisonment unavoidably results in the forfeiture of certain rights and privileges commonly exercised in a free society.” Gittlemacker v. Prasse, supra, at 3.
The district court succinctly posited the problem:
But a prison is not a private dwelling and a cell row is not a public highway. Thus plaintiffs’ freedoms and rights must be analyzed in the realistic context of the prison situation where plaintiffs desire to exercise them. 302 F.Supp. at 1047.
Guided by these principles, we turn to the argument advanced by the inmate-appellants, which suggests an inconsistency between the court’s conclusion that Eighth Amendment rights were denied them for two and one-half days and its refusal to award monetary damages. We do not find these conclusions incompatible. The complaint was a combination of counts in law and in equity. The district court treated this particular issue as one sounding in equity, setting forth in conclusion 7: “Plaintiffs were subjected to cruel and unusual punishment, but since it does not appear that this practice has been or will be continued, injunctive relief is DENIED.” 302 F.Supp. at 1062.
Accordingly, after considering all the arguments advanced by the cross-appellants, we will affirm the judgment of the district court.
Judge Seitz concurs in the result except that were he in the district court he would have assessed at least nominal damages against the defendants legally responsible for the conditions found to constitute cruel and unusual punishment. See Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965).
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
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songer_usc1
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35
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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.
EGRY REGISTER CO. v. STANDARD-REGISTER CO.
Circuit Court of Appeals, Sixth Circuit.
January 6, 1928.
No. 4762.
1. Patents <@=>318(4) — Court could not assume-on accounting that all defendant’s sales of infringing article were due to presence-of patented features.
It could not be assumed, on accounting for profits from infringing device, that all defendant’s sales of shipping bill register having plaintiff’s patented improvement were due to presence of patented features, and that all profits-were caused thereby.
2. Patents <@=>318(4) — Where invention infringed pertained to one portion of construction and operation of article sold, apportionment of profits on accounting was necessary.
Where actual invention infringed pertained to only one portion of construction and one feature of operation of shipping bill register sold' by defendant, an apportionment of profits on accounting was necessary for infringement.
3. Patents <@=>318(4) — Patentee cannot by language of claim transform invention of improvement in existing structure into one of complete structure, entitling him to profits, on whole structure.
Patentee cannot by language of his claim-, transform his invention of an improvement in an existing structure into, one of complete structure, as if it were wholly new, so as to entitle him to profits on those parts of it which are-not in any fair sense his invention.
4. Patents <@=>318(4) — Burden was on plaintiff to show apportionment of profits from sale of infringing article.
An apportionment of profits from sale of infringing article being necessary, burden was on plaintiff to make apportionment, or show sufficient excuse for not doing so.
5. Patents <@=>318(4)— Plaintiff suffering injury from infringement, not being entitled to ail profits, and not being able to make apportionment, was entitled to reasonable royalty..
Plaintiff, having suffered injury because of defendant’s infringement of patent for improvements on shipping bill register, and not having been able to make satisfactory proof of damages, not being entitled to all defendant’s profits from sale of register having such improvement, and not being able to make an intelligent apportionment, was entitled to • award of reasonable royalty.
6. Patents @=318(5) — Where patent infringe, ment period was about 18 months, plaintiff was entitled to interest at 6 per cent, on royalty from end of period until decree.
Where whole period during which patent was infringed was about 18 months, it was sufficient to allow, as damages for nonpayment of reasonable royalty, interest at 6 per cent, from end of period until decree.
7. Patents @=259(2) — Making and supplying to infringing machine articles necessary to infringing use, is “contributory infringement”' for profits of which makers must account.
Making and supplying to an infringing machine articles which are necessary to infringing use, and have no other possible use, and would have no sale value, excepting to these infringers for that use, is “contributory infringement,” for profits of which makers must account.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Contributory Infringement.]
8. Patents @=318(3) — In fixing reasonable royalty for infringement, question is what partios would have agreed on, if both were reasonably trying to reach an agreement.
In fixing a reasonable royalty for infringement of patent, primary inquiry is what parties would have agreed on, if both were reasonably trying to reach an agreement, and when result is to interfere with patent monopoly, which patentee was in position to and desired to keep by retaining entire market himself, his compensation for parting against his will with that opportunity must take due account of loss to him of anticipated profits on business which licensees will thus get away from him.
9. Patents @=318(3) — Future profits from sale of supplies for patented machine may be considered, in retroactively determining reasonable royalty.
When patentee’s business scheme involves reasonable expectation of making future profits by continuing sale to purchaser of patented machine, of supplies to be furnished by patentee, which future business he will lose by licensing a competitor to make machine, this expectant loss is an element to be considered in retroactively determining reasonable royalty.
10. Patents @=319(3) — Infringement of patent No. 940,481 for shipping bill register improvement held not willful, justifying statutory increase of damages (35 USCA § 70).
Infringement of patent No. 940,481 for improvement in shipping bill register held not willful, in such sense as to justify increase of damages, under Act Feb. 18, 1922, § 8 (35 USO A § 70).
Appeal from,the District Court of the United States for the Southern District of Ohio; Smith Hickenlooper, Judge.
Suit by the Standard Register Company against the Egry Register Company. From a decree for plaintiff, defendant appeals.
Reversed and remanded.
H. A. Toulmin, Jr., of Dayton, Ohio (H. A. Toulmin, of Dayton, Ohio, on the brief), for appellant.
Alfred M. Allen, of Cincinnati, Ohio (Allen & Allen, of Cincinnati, Ohio, E. H. & W. B. Turner, of Dayton, Ohio, and Marston Allen, of Cincinnati, Ohio, on the brief), for appellee.
Before DENISON and MACK, Circuit Judges, and DAWSON, District Judge.
DENISON, Circuit Judge.
In 267 F. 186, this court affirmed the decree which had found the validity of the Sehirmer patent, No. 940,481, belonging to the Standard Company, and the infringement of claims 1 and 2 by the Egry Company. There were thereafter a reference to a master for the usual accounting, and long proceedings before the master. His final report found, among other things, that defendant’s profits by the direct infringement were about $9,000, and that defendant, by selling supplies for the infringing machines which it had put out, was guilty of continuing contributory infringement, its profits from which were about $29,000. There was a final decree for these two amounts and interest, from which decree this appeal is taken.
Appellant contends that the award of defendant’s entire profits upon the original sales of the infringing machine is erroneous, because there should have been an apportionment of profits; and this presents the first question. The defendant’s device, which forms the basis of the award, is called an autographic register. It contemplates that the salesman or the shipping clerk will enter the proper details upon the blanks in a printed form, under which is carbon paper, which makes a duplicate record upon a registering blank form, and that the two will then be detached from the strips of paper of which they have been parts, and will be appropriately used. The device consists of what is substantially a rectangular metal box, perhaps 5 inches high and 15 long and 10 wide. In one end of the box are mounted two transverse shafts, which carry respectively two continuous rolls of the printed strip forms. Opposite the central part of the box is a longitudinal shaft, which carries a continuous strip of carbon paper. These printed strips are so led around idling rollers that the two strips, superposed, and the intervening carbon, pass together over a central portion of the top of the box, which becomes a writing bed or table while the blank is being filled out. The two strips are then passed on under a transversely pivoted guide, the front edge of which becomes a cutting edge, and the rear edge of which swings down and binds the strips firmly, when the used^ forms are turned up against it and tom off.
This general construction was older than the Sehirmer patent. The forward simultaneous feeding of the strips had been accomplished through a pressure roll, manually revolved. For this pressure roll Sehirmer substituted a roller underneath the paper, carrying at each end a spur wheel, the spurs or pins of which passed up through a row of holes through the strips near each edge, and thus when the spur wheels were revolved the strips of paper were pulled along. He also provided a cut-off bar, which alternately released and gripped the strips moving under it. There was nothing generally new, even in this construction, but Sehirmer’s in vention consisted in having his spur pins or teeth distinctly smaller than the holes, whereby they would pass through both these holes in spite of imperfect registration and rest loosely therein, and whereby the jogging motion of the pins in the holes would adjust or take up any little tightness in one strip, or looseness in another, and thereby compel a perfect registration. This arrangement also insured that the blank would be accurately positioned for presentation to the cut-off edge. There were patentable merit and substantial commercial value in Schirmer’s improvement; but, although the precise combination was new, yet it was and continued to be what he called it, an improvement in registers of this class, and consisted in adding to the general structure “accurate means for feeding two or more sheets * * * so that the writing lines of said sheets will at all times be in alignment.” Defendant’s infringing device differed from competing devices on the market, or other devices manufactured by it, only in the peculiar relation of the pin wheels to the perforated strips, in con-, neetion with the gripping and releasing of the cut-off bar.
There is no finding and there is no evidence that the sales made by defendant were particularly due to its incorporation in its device of the patented combination; doubtless, as in every such case, the patented improvement contributed to many of the sales and was the moving cause in some of them; but defendant was also selling analogous noninfringing devices to meet the same general demand. It cannot be assumed that all defendant’s sales were due to the presence of the patented features, and hence that all the profits were caused thereby. That
feature aside, it is plain that, in the ordinary sense, not all of defendant’s profits were due to the use of the patent. If a supporting framework and ornamentation in -a defendant’s device constitute the only features which are not the substance of the patented improvement, they may well be disregarded; but here the actual invention pertained to only one portion of the construction and one feature of the operation, and we are satisfied that an apportionment of profits was necessary. The ease is fairly parallel to the grain seeder ease considered by the Supreme Court in Dowagiac Co. v. Minnesota Co., 235 U. S. 641, 35 S. Ct. 221, 59 L. Ed. 398. In the present case, the single ultimate object is to produce a satisfactory duplicate record; in that case, the substantial object was to plant the grain efficiently. The assembled device in that ease provided for the three operations of preparing the ground, dropping the seed and covering it. The present device provides for storing and assembling the strips, moving and holding them in proper relation to the writing table, and then severing them. The inventive thought has to do with only one of these steps, moving the strips along properly in unison, or possibly with two of them, the travel and the severance. The Supreme Court found that in the grain seeder the evidence was clear that the profits were due in substantial degree to other important features (page 646 [35 S. Ct. 222]) and hence that there must be apportionment; and it is equally clear upon this record. True, the device would not have been operative without some strip-feeding means; no more would the grain seeder work without some covering shoe.
We have several times had occasion to say that the important matter in this connection was the actual invention as compared with the prior art, rather than the terms in which the claim may be formulated. Sehirmer apparently might have had a claim for his pin wheel and paper strip combination in any suitable association, or he might have made it include also the mechanism for severance, as he did, or the means for storing the paper and its preliminary assembling and feeding; he might even have included the supporting framework. He cannot, by the language which his claim happens to take, transform his invention of, an improvement in an existing structure into one of a complete structure, as if it were wholly new, so as to entitle him to profits upon these parts of it which are not in any fair sense his invention.
The course of decisions on this subject may well be noticed. In Brennan v. Dowagiac (C. C. A.) 162 F. 472, this court considered the matter of profits arising from infringement of the Hoyt patent by making the McSherry and similar grain drills. It seems to have been the distinct principles of decision of the opinion that the plaintiff was entitled to recover all the profits which the defendant earned by the sale of an infringing article containing additional and unpatented features, unless the article was a salable entity when the patented features were stripped from it, and (probably) unless also the additional features embodied were themselves the subject of a valid patent belonging to some one else. It was then further held that, with reference to the situation presented by the relation of the Hoyt patent to a complete grain drill, the infringing manufacturer who was not able to show his profits on the patented invention separately from those on the rest of the machine, must pay them all. In the Westinghouse Case, 225 U. S. 604, 32 S. Ct. 691, 56 L. Ed. 1222, 41 L. R. A. (N. S.) 653, principles were announced applicable to an electrical transformer infringing upon" an earlier patent therefor. It would seem that the defendant’s entire device was bodily the plaintiff’s patented device, nothing less and nothing more, excepting that defendant had shifted some of the parts, thereby creating differently located intervening spaces, and claimed that these new spaces were important and functional additions to the patented combination. "What is said in the opinion regarding the duty of the defendant to account for all profits, is said with reference to that situation; and it is not necessarily applicable to a case where the patented combination constitutes only a part of a marketable machine, or to cases where the defendant’s structure includes useful physical additions.
In Dowagiac Co. v. Minn. Co., supra, the Supreme Court had to consider profits resulting from an infringement of the same Hoyt patent involved in our Brennan Case. The infringement was apparently the same as that involved in the McSherry structures — the machines sold by the defendants in the Minnesota Case having been made by the manufacturers, who were the defendants in the Sixth Circuit eases. It is therefore difficult to conceive any substantial reason for any difference as to the necessity or form of apportionment, as between the two groups of cases. The Supreme Court distinctly held that apportionment was necessary and that the burden was upon the plaintiff to make it, or to show it to be impossible. In the Westinghouse Case, this burden upon plaintiff (if it there existed) was held to be discharged by showing that the defendant had so mingled the patented and the unpatented that apportionment was impossible. It might seem that apportionment was equally impossible in the Dowagiae Case; but the Supremo Court said that it did not so appear, and hence the plaintiff had failed. While it is in many eases impossible to apportion profits accurately by any logical moans, it may often happen that there is some satisfactory criterion of added value caused by the patented improvement and leading to the inference of added profits resulting therefrom. The comparison between selling prices of articles, with and without the improvement, may furnish this criterion (see Clark v. Schieble, etc., Co. [C. C. A.] 248 F. 276, 283); expert evidence might sometimes furnish it upon some theory. It may well be some method of this kind which the Supreme Court intends to specify by its reference in thei Dowagiae Case, to the lack of any real oh' stacle to a fair apportionment. However that may be, it seems clear that the Brennan Case, as to the two principles of decision above stated, is necessarily much impaired if not overruled by the Dowagiae Case.
Another consideration, not without importance, bearing perhaps on the propriety or perhaps on the difficulty of apportionment (or both) is this: The granted monopoly infringed upon is restricted by the grant to a combination of two elements: (1) The forward feeding means including the spur pins for the registering holes; and (2) the severing means, including a device alternately rising to release the strips for forwarding and falling to grip them for severing. Before the first hearing in the court below, defendant eliminated from its register all means for the alternate grip and release, and substituted a rigid and stationary cut-off bar. Its modified device did not infringe, but was sold at the same price, and the volume of sales did not drop; on the contrary, the volume increased at least normally from year to year; and the proof is clear that the direct profit was greater on the modified than on the infringing form, because the cost wap less. While contingencies of greater profit, if the first form had been continued, are not foreclosed, yet upon the record it appears that defendant' by infringing, instead of by taking an alternative course then open to it (though not then developed), made losses, not profits, .and this result must, at least, challenge critical study of any theory of profit recovery which makes it possible.'
An apportionment 1 being necessary, the burden is upon the plaintiff to make it, or show a sufficient excuse for not doing so, and obviously, under the facts of this case, a substantially accurate apportionment would be a physical and mathematical impossibility; but there was no effort by plaintiff to utilize expert testimony for this purpose. There are eases, like Herman v. Youngstown, etc., Co. (C. C. A.) 216 F. 604, 608, where the record shows some apparent means of approximate apportionment, which, though arbitrary, is still reasonable; but here there is no basis which has been suggested, save the relative costs of the material and labor in different parts of the structure. If this might ever bear any due relation to such an apportionment of profits as is now involved, we can see no such relation in this case; and we must hold that this record shows no reasonable basis of apportionment.
We do not understand the Westinghouse Case as holding that, in every case where the profits cannot be apportioned, defendant must pay them all. What is there said refers, we think, to a ease where apportionment is impossible because the device or structure sold by defendant is the entire patented thing, nothing more and nothing less. That seems to have been true with the case and converter there claimed. We have pointed out that it is not true with this register. Defendant may well be penalized with the entire profits, when his failure to keep apportionment records which might have been kept is at the base of the confusion; not so, we think, when no possible keeping of records by defendant would have minimized the uncertainty.
The plaintiff having suffered a plain injury,, and not having been able to make satisfactory proof of damages, and not being entitled to all the defendant’s profits, and not being able to make an intelligent apportion-, ment, we find here a clear instance of that class of cases discussed in U. S. v. Frumentum Co. v. Lauhoff (C. C. A.) 216 F. 610, 615, where the award of a reasonable royalty is the only solution of the difficulty. This has been sanctioned by the Supreme Court, and we have several times applied it. Dowagiac v. Minnesota, supra; K. W. Co. v. Temeo, 283 F. 873, 878; Fox v. Underwood, 287 F. 453, 454; Gear Co. v. Studebaker Co., 4 F.(2d) 510; National Tube Co. v. Mark, 10 F.(2d) 430, 432. Much of the doubt formerly existing as to when a case was fit for the application of this measure of damages is removed by the Act of February 18, 1922, § 8, embodied in U. S. Code, tit. 35, § 70; but, if this statute were applicable to this accounting, pending since 1918 (as it is not), it would only confirm the result we have independently reached.
We therefore hold that upon the present record the entire profits should not have been awarded; that the plaintiff had full and sufficient opportunity to show, if it could, an applicable criterion for apportioning the profits; that justice does not require that plaintiff should be given a further opportunity therefor, nor permit that all relief should be denied; and hence that the case should go back for a further hearing, with or without a further reference, to determine plaintiff’s damages upon the basis of a reasonable royalty. We would make every effort to find in the existing record a sufficient basis for the making of such an award by this court, so as to end the litigation, as we did in K. W. Co. v. Temco, supra; but we cannot be satisfied to dp so here. The determinative elements have not been developed.
It is part of the theory of damages upon the basis of reasonable royalty that the amounts would have been paid at customary intervals, and we have, under some circumstances, thought proper to allow interest from the end of each calendar year. In this case the whole infringement period was about 18 months, and it will be sufficient to allow, as damages for nonpayment, interest at 6 per cent, from the end of that period until the decree. See K. W. Co. v. Temco, supra, at page 380; National Co. v. Mark, supra, at page 453.
The question of defendant’s liability for profits made upon the supplies furnished by defendant to the purchasers of its infringing machines, presents substantial difficulties, which we need not- consider. It is settled that making and supplying to an infringing machine articles which are necessary to the infringing use, and which have no other possible use, and would have no sale value excepting to these infringers for that use, is contributory infringement, for the profits of which the makers must account. See Union Co. v. Curry (C. C. A. 6) 279 F. 465, 468; Lyman v. Bassick (C. C. A.) 18 F.[2d], 29, 38. When the articles sold have valuable and innocent use and may be thought of as articles of general merchandise, it is not so clear that the makers must respond as for contributory infringement, merely because they know that the purchasers intend to use the articles in the course of infringing operations; but in this case we need not consider whether the facts present this latter question, nor what the answer would be.
To adopt a reasonable royalty as the measure of damages is to adopt and interpret, as well as may be, the fiction that a license was to be granted at the time of beginning the infringement, and then to determine what the license price should have been. In effect, the court assumes the existence ab initio of, and declares the equitable terms of, a supposititious license, and does this nunc pro tunc; it creates and applies retrospectively a compulsory license. When once this basis of recovery is adopted, the whole structure ■of subsequent contributory infringement falls, because the theory that the users of the devices were infringing the patent has been rejected and the theory of a lawful and non-infringing use flowing from a license has been substituted. Upon this point, we have not had the benefit of argument by counsel, but it seems to us entirely plain.
In fixing a reasonable royalty, the primary inquiry, often complicated by secondary ones, is what the parties would have agreed upon, if both were reasonably trying to reach an agreement. This must be modified by the commercial situation, and when the result is to interfere with a patent monopoly, which the patentee was in position to and desired to keep, by retaining the entire market himself, his compensation for parting against his will with that opportunity must take due account of the loss to him of anticipated profits on the business which the licensees will thus get away from him. It is a step further, and we think a necessary one, to say that, when the patentee’s business scheme involves a reasonable expectation of making future profits by the continuing sale to the purchaser of the patented machine, of supplies to be furnished by the patentee, which future business he will lose by licensing a competitor to make the machine, this expectant loss is an element to be considered in retroactively determining a reasonable royalty; and this is so even though the expectation of such future business was not the result of any system of contract obligations, but was only expectation reasonably based on established business methods and customs. This retroactive determination of the value, 10 years ago, of a thing which then had no market value, is not easy; but it presents no greater difficulties than are met, fairly well, by courts and juries in other fields of litigation. We now know that what happened during a past period was, at its beginning, something which might happen, and not infrequently what is now the past is helpful in forming, now for then, an earlier judgment of what was then the future. Of course, this is not to say that a later developed form, which demonstrated that the entirety of the patented combination was not so relatively desirable as it was then thought to be, can be dated back and used as a standard of comparison affecting the earlier supposed valuation.
We should add, in view of what is to be the further course of the litigation, that we find no basis for any conclusion that the infringement was willful in any such sense as to justify the statutory increase of damages. U. S. C. tit. 35, § 70. Both as to validity and infringement there was doubt sufficient to support the good faith of a belief that defendant was right. The strenuous and persistent defense, which is attacked by plaintiff as overlitigious, has led to the award against defendant of a large sum as costs, and we see neither reason nor opportunity to go further in penalizing the defense. There is no appeal on this point, and the costs in the court below up to this time are not to be disturbed.
The decree is reversed, with costs of this court, and the case is remanded for the entry of a new decree in accordance with this opinion.
Dunn v. Standard, etc., Co., 204 F. 617, 619; Herman v. Youngstown, etc., Co., 216 F. 604, 606, 609.
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_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America v. Edward William LANCER, Appellant.
No. 73-1795.
United States Court of Appeals, Third Circuit.
Argued Dec. 13, 1973.
Reargued Sept. 13, 1974.
Decided Jan. 30, 1975.
Forman, Circuit Judge, dissented and filed opinion which was partly concurred in by Seitz, Chief Judge.
Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Chief, App. Section, Asst. U. S. Atty., Alan M. Lieberman, Thomas E. Mellon, Jr., Asst. U. S. Attys., Philadelphia, Pa., for appellee.
David Kanner, Kanner, Stein & Barol, Philadelphia, Pa., for appellant.
Argued Dec. 13, 1973.
Before FORMAN, HUNTER and GARTH, Circuit Judges.
Reargued Sept. 13, 1974.
Before SEITZ, Chief Judge, and FOR-MAN, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
This appeal requires us to examine the validity and interrelationship of sentences imposed upon the petitioner under 18 U.S.C. §§ 3651, 3653 and 4208. We are obliged to decide among other issues: whether the petitioner’s sentence was properly imposed on July 28, 1965, and therefore, whether he was validly on probation at a time when an order for his arrest charging probation violation was issued on October 9, 1970. We must also determine whether the district court erred in sentencing the_ petitioner under the provisions of 18 U.S.C. § 420&(b) & (c) after it had revoked his probation in March of 1967; and, finally, we must determine whether the district court, once having revoked probation, could thereafter reimpose a probationary term. As originally presented, it appeared that we would only be required to determine two issues: the first involved the maximum sentence that could be imposed for a violation of 18 U.S.C. § 641 where the indictment alleged no value and a plea to the indictment was taken without proof of value; the second involved imposition of sentences of probation on two separate indictments totalling in excess of five years. After argument before a panel of this court, on our own motion, we ordered rehearing en banc to consider these issues and others discussed below.
For the reasons set forth herein, we hold, inter alia, that Lancer was still within the valid four year, ten month, probationary term imposed under Indictment 22119 when the October 9, 1970 warrant issued. Therefore, petitioner is not entitled to a withdrawal of the warrant and to discharge of the detainer. This holding, in many but not all respects accords with the analysis of the district court. Nevertheless, we are obliged to remand to the district court to correct certain of the sentences imposed and to compute the remaining probationary term which Lancer must serve.
I. Facts
On June 1, 1965, petitioner, Edward William Lancer, pleaded guilty in the District Court for the Eastern District of Pennsylvania to Indictment 22119 charging him, in one count, with having received 364 money orders stolen from post offices in Pennsylvania and New Jersey in violation of 18 U.S.C. § 641. On July 28, 1965, the petitioner pleaded guilty to Indictment 22173, a two-count indictment charging the forging and uttering of a bank money order in violation of 18 U.S.C. § 500 (forging a postal money order). On that same date, he also entered guilty pleas to six other indictments variously charging him with offenses under 18 U.S.C. §§ 641, 500, and 1708 (theft or receipt of stolen mail matter). The latter six indictments, along with Indictment 22173, were transferred from six different states to the Eastern District of Pennsylvania under Fed.R. Crim.P. 20. After taking guilty pleas to all indictments, the district court imposed the following sentences:
Under Indictment 22119:
Ten (10) years, the first two months of which are to be served in a jail-type institution. The execution of the balance of the sentence is suspended and the defendant placed upon probation for a period of Four (4) Years and Ten (10) months, under the provisions of § 3651, Title 18, U.S.Code.
Under Indictment 22173:
[imposition of sentence is suspended on Count 1, and the defendant placed upon probation for a period of Five (5) years on said count, the probation period is to begin at the expiration of that imposed in Criminal No. 22119. On Count 2, the imposition of sentence is suspended.
On each of the other six indictments, the imposition of sentence was also suspended with no probation imposed.
The record reveals that Lancer’s probation under Indictment 22119 actually commenced in May 1966. The November 7, 1966 petition charging Lancer with violation of probation (lying, forging fraudulent checks, absconding from supervision, etc.) led to a hearing before the district court on March 29, 1967.® The order of the district court, entered on March 29th revoked Lancer’s probation and ordered imprisonment for a period of
“... NINE (9) YEARS and TEN (10) MONTHS, said sentence of imprisonment being imposed under the provisions of Title 18 U.S.Code § 4208(b) for a study as described in § 4208(c); the results of such study to be furnished to the Court within three months.....”
On completion of the study, Lancer was returned to court on August 3, 1967 for final sentence, and was placed on probation for nine years and ten months, with the imposition of prison sentence suspended. By order dated April 9, 1968, (apparently in response to the United States Attorney’s motion, supra n.ll), the district court suspended imposition of prison sentence but, this time, placed petitioner on probation for “four (4) years and ten (10) months.”
In January, 1968, Lancer was again charged with violation of probation (absconding). After a court hearing on June 10, 1968, probation was continued.
The order authorizing Lancer’s arrest for his last violation of probation was entered on October 9, 1970. As related in note 1, supra, a detainer based upon that order was placed against Lancer at Leavenworth prison on April 26, 1972. The instant action has been precipitated in large part by reason of this detainer.
Lancer’s pro se motion to vacate sentence referred to all eight indictments, although the significant indictment for purposes of this appeal is Indictment 22119. The district court in denying Lancer’s motion held that: (a) the indictment was valid; (b) the ten year maximum sentence, permitted under 18 U.S.C. § 641 where value exceeds $100, could properly be imposed after a plea of guilty, because the district court could judicially notice that the value of 364 blank, stolen money orders exceeded the $100 penalty “hurdle”; (c) 18 U.S.C. § 3651 does not preclude consecutive five year probationary terms on separate indictments; and, (d) after revocation of probation, a study may be ordered and probation again imposed. This appeal followed.
II. Petitioner’s Theory
Essentially, Lancer’s theory, by which he seeks discharge of all restraints (in the form of sentences to be served and detainers), particularly, the October 1970 detainer, proceeds as follows:
1. His original sentence of ten years under Indictment 22119 was illegal and excessive, in that the maximum sentence which could have been imposed under 18 U.S.C. § 641 (in the absence of an allegation of value in excess of $100) was one year;
2. His original probationary term of four years and ten months under Indictment 22119 has expired;
3. It is illegal to impose consecutive terms of probation in excess of five years; and
4. The probationary term imposed by the district court as a result of the March 29, 1967 hearing was unauthorized by 18 U.S.C. § 4208.
Hence, Lancer claims that he was not legally on probation when the order of October 9, 1970 issued, charging a violation of probation, and all subsequent acts which depend upon that order must necessarily be void.
III. The 1965 Sentence (18 U.S.C. § 641)
Our analysis starts with an examination of Indictment 22119 charging petitioner with a violation of 18 U.S.C. § 641. Section 641 provides for two levels of penalties depending on the value of the property converted. If the value of the stolen property is $100 or more, an offender, “shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” However, if the value of the property is less than $100, an offender cannot be fined “more than $1,000 or imprisoned more than one year, or both.” Indictment 22119 alleges no value for the 364 converted money orders and no proof of value was offered at the time petitioner entered his guilty pleas.
In United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966), we were called upon to consider a motion to dismiss an indictment brought under 18 U.S.C. § 641. The indictment in that case alleged a value in excess of $100 attributable to 51 stolen money orders. The argument was made that, inasmuch as the money orders were blank, their value had to be less than $100. Despite the government’s offer to prove value in excess of $100, the district court dismissed the indictment. We reversed, stating (at 358 F.2d 441);
“... The essential wrong which the statute proscribes is the misappropriation of government property, knowing that it has been stolen. Thus, no particular value of the stolen property need be alleged or proved to sustain a conviction, though in such a case only the lesser punishment can be imposed....” United States v. Marpes, 198 F.2d 186 (3d Cir. 1952) (emphasis added).
In United States v. Marpes, supra, the defendant had been charged under two indictments alleging violations of 18 U.S.C. § 659. One indictment specified a value in excess of $100. The other, as in the instant case, was silent as to value. As to the latter Marpes indictment, the court stated;
“... The sentence of one year’s imprisonment imposed under Indictment No. 13295 was necessarily based upon a value of $100 or less, since the indictment did not allege value....” 198 F.2d 189.
The cases, cited by the government in an effort to sustain the sentence imposed upon Lancer, are inapposite, as in each of them, the indictments allege a value in excess of $100, an ingredient missing in the Lancer Indictment.
We agree with Lancer that, under Indictment 22119, his sentence could not exceed a prison term of more than one year. We hold, therefore, that it was error for the district court to impose a ten year sentence even though nine years and ten months of that sentence were suspended. The district court did not err, however, in following its ten year sentence with a probationary term of four years and ten months. As previously noted (note 18 supra), the probationary term need not be limited to the maximum prison sentence (in this case one year) prescribed by statute.
Lancer’s entire sentence of July 28, 1965, is not voided by our holding that the district court imposed an excessive prison term. The district court could validly have imposed a one year term and that period remains as Lancer’s sentence under Indictment 22119. United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631 (1894). We leave to the district court, on remand, the task of correcting Lancer’s sentence in accordance with our holding.
IV. The 1967 Revocation of Probation (18 U.S.C. §§ 3653, 3651, 4208)
(A). § 3653
18 U.S.C. § 3653 (see note 3 supra) specifies the action which may be taken by the district court after the probationer has been arrested for violation of probation. Under the terms of the statute, the district court could revoke Lancer’s probation (as it did) and require him either to serve the sentence imposed or any lesser sentence.
In the present case, the July 28, 1965 sentence is the “sentence imposed” within the meaning of § 3653. We have already determined that the July 28, 1965 sentence was excessive when entered (see III supra), but not void. Hence, when Lancer’s probation was revoked under § 3653, the maximum time which he could have been required to serve was limited to the time remaining under a one year (and not a ten year) sentence. Lancer had served two months in jail and, as we construe the record, had apparently been credited with four months of pre-sentence custody by the district court. Accordingly, as of March 29, 1967, Lancer had served six months in jail and could have been required to serve no more than another six months. The district court apparently acted under the first alternative of § 3653 in requiring Lancer to “serve the sentence imposed”. Translating what the district court intended to do in its order of March 29, 1967, into what it could validly do, the district court in effect committed Lancer for the unserved portion of a valid one year sentence (i.e., six months). It chose to do so under the terms of § 4208(b) and (c) (see discussion following) seeking such guidance as a study could furnish, prior to imposing final sentence.
Although the district court may have erred in its determination as to the term to which Lancer could be sentenced in both its July 1965 order and in its March 1967 order, nevertheless, it committed no error in the manner in which it applied the provisions of § 3653. The district court did in fact require service of the unserved portion of the original sentence which, we hold today, is limited to one year. This is precisely what § 3653, by its terms, authorizes.
(B). § 4208
While Lancer does not challenge the manner in which the district court applied § 3653 in its order of March 29, 1967, he does assert that the district court could not impose probation under 18 U.S.C. § 4208 once his probation was revoked. To answer this argument, two preliminary questions must be considered.
(1) Are the study provisions of § 4208(b) and (c) available where the sentence of the probationer does not exceed one year?
(2) Are these provisions available for use in conjunction with the revocation of probation under § 3653?
In answering these questions, we initially look to the relevant legislative history. 18 U.S.C. § 4208 was enacted in 1958 to provide additional information, services, and sentencing procedures to enable the sentencing judge to impose equitable and flexible sentences in keeping with the needs of the offender and public safety. It was designed to afford greater discretion to the district court judge, as well as to give the court (in § 4208(b) and (c)) discretionary access to the evaluative services of the Bureau of Prisons before being required to impose a final sentence.
§ 4208(a) provides the judge with alternative procedures in sentencing convicted offenders to imprisonment. Under this provision, one option open to the court is to fix the maximum term and leave parole eligibility at one-third of this maximum period. Alternatively, the parole eligibility date can be left to the Board of Parole, or it can be specified at less than one-third the maximum sentence imposed.
Still another technique (designed for flexibility in sentencing) was incorporated into the statute in the form of the study provisions found in § 4208(b) and (c). The House Committee Report described these sections in this fashion:
“Sub-Section (b) would make it possible for the court, when confronted with the necessity of making a sentence determination in a particularly difficult case, to commit the defendant (technically under the statutory maximum term) to the Attorney General for a complete study over a period of three to six months. At the completion of this period the court would be authorized to modify the sentence if the study’s findings and the judgment of the court indicate such action.... This provision would extend the court’s authority to modify a sentence to a period up to six months, thereby making feasible • detailed studies of selected defendants before a final sentence must be formulated.
After receiving from the Director of the Bureau of Prisons a summary of this study, the court in fixing the final penalty may affirm the original sentence or impose a modified sentence under any applicable provision of law.. Inasmuch as the origina[l] [sic] sentence of the court represents the maximum authorized by statute, any later modification by the court would constitute a reduction in sentence.... A number of judges have advised the Committee that this extension [up to six months] would be most helpful in enabling them to give more deliberate consideration to exceptional cases.
Sub-Section (c). prescribes that the Director of the Bureau of Prisons make the prisoner studies needed for parole eligibility and release determinations by the Board of Parole...,”
In its order of March 29, 1967, the district court acted under § 4208(b) and (c) rather than under § 4208(a). When the statutory language of Sub-section (b) is contrasted with that of Sub-section (a) (see note 4 supra) it is significant that two limitations found in Sub-section (a) are missing from Sub-section (b). Subsection (a) is prefaced by the words “Upon entering a judgment of conviction..” No such language appears in Sub-section (b).
Similarly, Sub-section (a) purports to be limited to cases in which “. the defendant [is] sentenced to imprisonment for a term exceeding one year..” Again, such language is conspicuously absent from Sub-section (b). These differences in statutory language, as well as the legislative history of § 4208, are relevant to our determination that the district court did not err in utilizing § 4208 in its March 29, 1967 order.
One Year Term
The fact that Sub-section (b) is silent with respect to the length of sentence required before a study can be ordered is consistent with our view that the purpose for the study provisions bears little relationship to the term for which the defendant can be sentenced. The purpose of Sub-section (b) was to assist the court in “making a sentence determination in a particularly difficult case.” There is no basis for assuming that difficult sentencing decisions occur only when the permissible sentence exceeds one year. Complicated factors, which a study by the Bureau of Prisons is designed to sort out, are just as likely to be present when the offense committed carries a maximum sentence of less than one year. Here, Lancer had pleaded guilty to eight separate indictments and had suffered incarceration on other, unrelated charges during the time his probation under Indictment 22119 should have been running. Whatever factors influenced the district court in its initial sentence of Lancer on, July 28, 1965 might or might not have been operative by March 29, 1967. The learned district judge, in an effort to determine the appropriate sentence in light of the intervening incarceration and the violation of probation, employed § 4208 for the precise purposes for which it was enacted. We find no logic in a construction of the statute which would prohibit the district court from utilizing the study provisions of § 4208(b) and (c) where the term of the offender is less than one year. We therefore hold that the “one year” limitation of § 4208(a) was not intended by Congress to bar use of § 4208(b) and (c) after probation has been revoked on an offense carrying a maximum penalty not exceeding one year imprisonment.
Interrelationship of §§ 3653 and 4208
It is argued that, after probation has been revoked, the district court is without authority to sentence pursuant to § 4208. This argument focusing on the first words of § 4208(a) (“Upon entering a judgment of conviction...”), characterizes this clause as a “time” limitation which restricts the use of § 4208 to the time of initial sentencing. We do not agree.
In the first instance, 18 U.S.C. § 4208(b), the section with which we are here concerned, makes no reference to and is not prefaced by, the arguably limiting language of Sub-section (a). The words “Upon entering a judgment of conviction... ” are not to be found in either § 4208(b) or (c).
Additionally, if we were to adopt the “time” characterization urged upon us, it would necessarily bring § 4208 into conflict with § 3653 — a result which we do not believe was ever intended. This inconsistency can best be shown by an illustration. An offender, placed on probation in 1972 with imposition of sentence suspended, violates probation in 1974. If § 4208 is not available for re-sentencing purposes in 1974, because 1974 is not the “time” when the (1972) “Judgment of Conviction” was entered, the “third alternative” of § 3653 (see note 26 supra) would be meaningless. Under § 3653, the court after revoking probation may (if imposition of sentence was suspended) “... impose any sentence which might originally have been imposed.” If sentence could have originally been imposed under § 4208, as it unquestionably could, then § 4208 is available for use upon revocation of probation under § 3653’s third alternative, and the “time” limitation argument urged against its use, must fall. If available under one alternative under § 3653, we see no logic in concluding that § 4208 is not equally available under the other resentencing provisions of § 3653.
Substantiating our conclusion that the prefatory language of § 4208(a) (“Upon entering a judgment of conviction.”) imposes no time restriction or other limitation on the use of § 4208(b) and (c), is Fed.R.Crim.P. 35 which permits a reduction in sentence within 120 days after sentence is imposed. If we were to adopt the construction urged upon us that § 4208 can be utilized only “Upon entering a judgment of conviction.” then there could be no modification of a sentence, (originally imposed under another statute (e.g. § 3651)), to a sentence pursuant to § 4208. We know of no such restriction required either by the express terms of the statutes in question or by reason and, hence, we are of the view that § 4208 was properly utilized by the district court in its March 29, 1967 order. (See n. 37 infra).
Reimposition of Probation
Our answers to the two preliminary questions result in our approving the use of § 4208(b) and (c) in the March 29, 1967 order. The ultimate question then remains whether § 4208 authorizes the reimposition of probation after probation has once been revoked. There is little precedent to guide us in this area. We do have, however, the views expressed by Mr. Barkin, Legal Counsel to the Bureau of Prisons who has written:
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“It seems to me that the language of the statute makes it quite clear that once having revoked probation, the court must then impose a sentence. It may not revoke and thereupon reinstate the defendant to probation. The logic of this provision seems apparent. Since a court does not have to revoke even if the defendant violates the conditions of probation, but rather revoke only when it concludes the defendant should no longer remain at liberty in the community, it would be most incongruous if it immediately reinstated the defendant without anything new and material before it.
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Whether a probation violator, who has been committed under the provisions of § 4208(b), can thereafter be reinstated to probation in view of the provisions of § 3653, as far as I know, has never been decided by a competent court. Again, ‘shooting from the hip,’ I take the view that probation is available to the Court under these circumstances. The rationale behind the preclusion of reinstatement after revocation as set forth in § 3653, is not applicable to this situation because here the court has new, and possibly significant information before it when the case comes before it for final disposition. It would seem most incongruous if the court would be unable to reinstate a defendant to probation if the new facts available to it clearly indicate this to be the proper course to take. In addition, in applying § 4208(b) in the first place the court clearly indicated that it was uncertain and wanted more information before making its final determination.”
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Mr. Barkin’s analysis accords with the one case we have found in which a sentencing judge revoked probation and then utilized § 4208 for the purpose of obtaining information to aid the court in determining the sentence to be imposed. Smith v. United States, 297 F.Supp. 131 (N.D.Mo.1968). We recognize that in the instant case probation followed the use of § 4208(b) and (c) while in Smith imprisonment followed the revocation of probation. Nevertheless, the procedure employed by the district court in Smith in order to obtain information helpful to sentencing is the very procedure utilized by the district court here. We cannot distinguish the actions taken by the Smith court from those taken by the district court judge in the instant case. Both courts were seeking information for assistance in sentencing; both courts looked to § 4208(b) and (c) for that assistance; and both courts utilized information furnished in formulating the final action which they took. We do not believe that the fact that the Smith court imposed imprisonment after completion of the § 4208 study while the district court here imposed probation should affect the availability of § 4208.
In Smith a term of five years was imposed. The district court in this case, after utilizing the information received, determined that a term of “no years” should be imposed. We find little logic in an interpretation which would require us to hold that § 4208 might be available after revocation of probation if as little as one day’s imprisonment results but not if “no imprisonment” results.
An argument has been made that an examination of § 3651 (which provides for the imposition of probation) and § 3653 (which provides for revocation of probation) reveals a distinction between the terms “probation” and “sentence”. This distinction, it is argued, prevents the district court, once it revokes probation, from reimposing probation because the only discretion left in the district court at that point is to determine whether the probation violator should serve the original sentence imposed or a lesser sentence. If, as it is argued, “probation” is not a “sentence” within the meaning of § 3653, then the district court cannot reimpose “probation” because § 3653 requires service of the “sentence imposed” (Le., a prison term).
We recognize that in various statutory contexts a distinction is drawn between “probation” and “sentence”, despite the punitive features of probation. Whether or not that distinction would prevent a district court from reimposing probation immediately after it had revoked probation we need not decide in the factual context of this case. Here, the distinguished district judge after revoking probation committed Lancer to the custody of the Attorney General to serve the “sentence” originally imposed (nine years, ten months) (see p. 723 supra). The district court’s use of § 4208(b) and (c) resulted in Lancer’s imprisonment for at least three months during the course of the study. It was only after the initial § 4208(b) custody period had ended, and the study furnished to the district court, that probation was again ordered. Imposition of probation at the completion of the study is one alternative specifically contemplated by § 4208(b), which provides that:
“ • •. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.” (emphasis supplied).
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Thus while we recognize that under existing law, probation may not be regarded as a “sentence” for all purposes we need only decide here that the proper use of § 4208 in conjunction with §§ 3653 and 3651, permits the reimposition of probation after its revocation. Further we perceive no practical difference between revocation of probation, followed by reimposition of probation, and continuation of probation in the first instance. It is not contended, for example, that the district court was without power to continue Lancer on probation, as it did in its order of June 10, 1968. Had the March 29th order been framed as a “continuation of probation” rather than a “revocation of probation” there could be little argument as to its validity. We do not think that a mechanistic argument seeking to distinguish between the two orders on the basis of the semantic differences between them justifies reaching a- different result in the case of each order. To argue that a district judge is authorized to continue an accused probation violator on probation but is without power to revoke probation (so that the violation can be fully entered in the probationer’s record) and then reimpose probation is to exalt form over substance.
We hold, therefore, that the provisions of § 4208(b) and (c) may be utilized in conjunction with revocation of probation proceedings under § 3653. If so employed, the district court after it has received the § 4208(c) study, may again impose probation, even though it had previously revoked probation. Accordingly, the district court here did not err in employing § 4208(b) and (c) in its March 29, 1967 order, and exercising its discretion in reimposing probation at the conclusion of the study. It did err, however, in imposing a greater probationary term than is permissible. The permissible term of probation that could have been imposed at that time was restricted to a maximum of five years less- the number of months theretofore served on probation by Lancer under Indictment 22119.
V. Service of Probation Term
Lancer also challenges the consecutive terms of probation imposed on July 28, 1965. He claims first, that his original four year, ten months probationary term under Indictment 22119 had expired by October 9, 1970 (the date the order was entered authorizing the warrant for his last violation of probation). Second, he claims that § 3651 authorizes no more than five years probation and that, therefore, the second five year probationary term imposed under Indictment 22173 was void and incapable of supporting the warrant ordered on October 9, 1970, and resulting detainer. We find no merit in either argument.
(A). Probation Served Under Indictment 22119
Lancer’s contention that his probation time under Indictment 22119 had been fully served by October 9, 1970 results from a mechanical computation of the gross time interval between the date of sentence (July 28, 1965) and the date of the order authorizing a warrant for his arrest (October 9, 1970). This gross interval (using 30-day months) totals five (5) years, two (2) months and eleven (11) days. It fails, however, to take into account time spent in custody, which we have calculated at approximately six (6) months and five (5) days.
Subtracting only “jail-time” served (six (6) months and five (5) days) from the gross time interval of five (5) years, two (2) months and eleven (11) days reveals that Lancer could not have served more than four (4) years, eight (8) months and seven (7) days on probation under this Indictment. Inasmuch as Lancer was required to. serve four (4) years, ten (10) months on probation under Indictment 22119, it is evident that he has not completed his initial probationary term.
The above calculation has deliberately excluded: other periods of incarceration spent under unrelated charges (see I supra ), time when Lancer was in violation of probation, or time spent during custody transfers following such violations. We have made this initial calculation by taking into consideration only the most evident deductions from the time Lancer claims to have spent on probation; that is, jail time served under this very Indictment. When other required deductions are made by the district court on remand, it will become apparent that Lancer still has a substantial period of time to serve on probation under Indictment 22119. Even calculating on the basis of the incomplete record before us, it is apparent that Lancer falls far short of having completed his probationary term under this Indictment.
Lancer was sentenced on July 28, 1965. He served two (2) months in jail; was released on September 28,1965; and was then taken to Ohio to face unrelated charges. On May 2, 1966 he began his four (4) year, ten (10) months probationary term in this district. A petition dated November 7, 1966 reveals that at least by that date Lancer was in violation of probation. (Up to this time, Lancer had spent six (6) months and five (5) days on probation). From November 7, 1966 until March 29, 1967, petitioner was in custody for probation violation. On March 29, 1967 the court revoked probation and committed Lancer for the § 4208(b) study. He was not returned to court for final sentencing until August 3, 1967. Hence, from November 7, 1966 to August 3, 1967 Lancer cannot be credited with having served probationary time.
On August 3, 1967 Lancer was to have resumed probationary status. The probation report, however, reveals that unrelated detainers had been placed against him which required the Philadelphia police to take him into custody. After having posted bail with respect to these detainers, he again absconded, and on January 10, 1968 was accordingly charged with probation violation. From that date until June 10, 1968, Lancer was in probation violation (or custody travel as a result of probation violation). Hence, we cannot credit any additional probationary time served from August 3, 1967 to June 10, 1968. The probation record reveals that after Lancer was continued on probation on June 10, 1968 he was returned to Iowa to serve a one year sentence, and was not released from confinement there until February 4, 1969.
From February 4, 1969 until February 20, 1970 (one (1) year and sixteen (16) days) he was again under probationary supervision under Indictment 22119 in this district. Adding this one (1) year, sixteen (16) days to his prior allowable probationary service (May 2, 1966 to November 7, 1966) of six (6) months, five (5) days, reveals that Lancer has served no more than one (1) year, six (6) months and twenty-one (21) days of his prescribed four (4) year, ten (10) months term.
(B). Probationary Terms Exceeding Five Years
Having determined from our review of the record that Lancer has yet to complete service of his probationary term under Indictment 22119, we nonetheless are obliged to consider his contention that the probationary term of five (5) years imposed under Indictment 22173 is void In support of this argument, Lancer cites Fox v. United States, 354 F.2d 752 (10th Cir. 1965) and United States v. Pisano, 266 F.Supp. 913 (E.D.Pa.1967). We believe his reliance on these authorities is misplaced.
Fox involved a single information containing two counts. Imposition of sentence was suspended, and Fox was placed on probation for five years on each count, the periods to run consecutively. Subsequent probation violations brought into question the validity of the consecutive probationary terms exceeding five
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America v. Edward William LANCER, Appellant.
No. 73-1795.
United States Court of Appeals, Third Circuit.
Argued Dec. 13, 1973.
Reargued Sept. 13, 1974.
Decided Jan. 30, 1975.
Forman, Circuit Judge, dissented and filed opinion which was partly concurred in by Seitz, Chief Judge.
Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Chief, App. Section, Asst. U. S. Atty., Alan M. Lieberman, Thomas E. Mellon, Jr., Asst. U. S. Attys., Philadelphia, Pa., for appellee.
David Kanner, Kanner, Stein & Barol, Philadelphia, Pa., for appellant.
Argued Dec. 13, 1973.
Before FORMAN, HUNTER and GARTH, Circuit Judges.
Reargued Sept. 13, 1974.
Before SEITZ, Chief Judge, and FOR-MAN, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
This appeal requires us to examine the validity and interrelationship of sentences imposed upon the petitioner under 18 U.S.C. §§ 3651, 3653 and 4208. We are obliged to decide among other issues: whether the petitioner’s sentence was properly imposed on July 28, 1965, and therefore, whether he was validly on probation at a time when an order for his arrest charging probation violation was issued on October 9, 1970. We must also determine whether the district court erred in sentencing the_ petitioner under the provisions of 18 U.S.C. § 420&(b) & (c) after it had revoked his probation in March of 1967; and, finally, we must determine whether the district court, once having revoked probation, could thereafter reimpose a probationary term. As originally presented, it appeared that we would only be required to determine two issues: the first involved the maximum sentence that could be imposed for a violation of 18 U.S.C. § 641 where the indictment alleged no value and a plea to the indictment was taken without proof of value; the second involved imposition of sentences of probation on two separate indictments totalling in excess of five years. After argument before a panel of this court, on our own motion, we ordered rehearing en banc to consider these issues and others discussed below.
For the reasons set forth herein, we hold, inter alia, that Lancer was still within the valid four year, ten month, probationary term imposed under Indictment 22119 when the October 9, 1970 warrant issued. Therefore, petitioner is not entitled to a withdrawal of the warrant and to discharge of the detainer. This holding, in many but not all respects accords with the analysis of the district court. Nevertheless, we are obliged to remand to the district court to correct certain of the sentences imposed and to compute the remaining probationary term which Lancer must serve.
I. Facts
On June 1, 1965, petitioner, Edward William Lancer, pleaded guilty in the District Court for the Eastern District of Pennsylvania to Indictment 22119 charging him, in one count, with having received 364 money orders stolen from post offices in Pennsylvania and New Jersey in violation of 18 U.S.C. § 641. On July 28, 1965, the petitioner pleaded guilty to Indictment 22173, a two-count indictment charging the forging and uttering of a bank money order in violation of 18 U.S.C. § 500 (forging a postal money order). On that same date, he also entered guilty pleas to six other indictments variously charging him with offenses under 18 U.S.C. §§ 641, 500, and 1708 (theft or receipt of stolen mail matter). The latter six indictments, along with Indictment 22173, were transferred from six different states to the Eastern District of Pennsylvania under Fed.R. Crim.P. 20. After taking guilty pleas to all indictments, the district court imposed the following sentences:
Under Indictment 22119:
Ten (10) years, the first two months of which are to be served in a jail-type institution. The execution of the balance of the sentence is suspended and the defendant placed upon probation for a period of Four (4) Years and Ten (10) months, under the provisions of § 3651, Title 18, U.S.Code.
Under Indictment 22173:
[imposition of sentence is suspended on Count 1, and the defendant placed upon probation for a period of Five (5) years on said count, the probation period is to begin at the expiration of that imposed in Criminal No. 22119. On Count 2, the imposition of sentence is suspended.
On each of the other six indictments, the imposition of sentence was also suspended with no probation imposed.
The record reveals that Lancer’s probation under Indictment 22119 actually commenced in May 1966. The November 7, 1966 petition charging Lancer with violation of probation (lying, forging fraudulent checks, absconding from supervision, etc.) led to a hearing before the district court on March 29, 1967.® The order of the district court, entered on March 29th revoked Lancer’s probation and ordered imprisonment for a period of
“... NINE (9) YEARS and TEN (10) MONTHS, said sentence of imprisonment being imposed under the provisions of Title 18 U.S.Code § 4208(b) for a study as described in § 4208(c); the results of such study to be furnished to the Court within three months.....”
On completion of the study, Lancer was returned to court on August 3, 1967 for final sentence, and was placed on probation for nine years and ten months, with the imposition of prison sentence suspended. By order dated April 9, 1968, (apparently in response to the United States Attorney’s motion, supra n.ll), the district court suspended imposition of prison sentence but, this time, placed petitioner on probation for “four (4) years and ten (10) months.”
In January, 1968, Lancer was again charged with violation of probation (absconding). After a court hearing on June 10, 1968, probation was continued.
The order authorizing Lancer’s arrest for his last violation of probation was entered on October 9, 1970. As related in note 1, supra, a detainer based upon that order was placed against Lancer at Leavenworth prison on April 26, 1972. The instant action has been precipitated in large part by reason of this detainer.
Lancer’s pro se motion to vacate sentence referred to all eight indictments, although the significant indictment for purposes of this appeal is Indictment 22119. The district court in denying Lancer’s motion held that: (a) the indictment was valid; (b) the ten year maximum sentence, permitted under 18 U.S.C. § 641 where value exceeds $100, could properly be imposed after a plea of guilty, because the district court could judicially notice that the value of 364 blank, stolen money orders exceeded the $100 penalty “hurdle”; (c) 18 U.S.C. § 3651 does not preclude consecutive five year probationary terms on separate indictments; and, (d) after revocation of probation, a study may be ordered and probation again imposed. This appeal followed.
II. Petitioner’s Theory
Essentially, Lancer’s theory, by which he seeks discharge of all restraints (in the form of sentences to be served and detainers), particularly, the October 1970 detainer, proceeds as follows:
1. His original sentence of ten years under Indictment 22119 was illegal and excessive, in that the maximum sentence which could have been imposed under 18 U.S.C. § 641 (in the absence of an allegation of value in excess of $100) was one year;
2. His original probationary term of four years and ten months under Indictment 22119 has expired;
3. It is illegal to impose consecutive terms of probation in excess of five years; and
4. The probationary term imposed by the district court as a result of the March 29, 1967 hearing was unauthorized by 18 U.S.C. § 4208.
Hence, Lancer claims that he was not legally on probation when the order of October 9, 1970 issued, charging a violation of probation, and all subsequent acts which depend upon that order must necessarily be void.
III. The 1965 Sentence (18 U.S.C. § 641)
Our analysis starts with an examination of Indictment 22119 charging petitioner with a violation of 18 U.S.C. § 641. Section 641 provides for two levels of penalties depending on the value of the property converted. If the value of the stolen property is $100 or more, an offender, “shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” However, if the value of the property is less than $100, an offender cannot be fined “more than $1,000 or imprisoned more than one year, or both.” Indictment 22119 alleges no value for the 364 converted money orders and no proof of value was offered at the time petitioner entered his guilty pleas.
In United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966), we were called upon to consider a motion to dismiss an indictment brought under 18 U.S.C. § 641. The indictment in that case alleged a value in excess of $100 attributable to 51 stolen money orders. The argument was made that, inasmuch as the money orders were blank, their value had to be less than $100. Despite the government’s offer to prove value in excess of $100, the district court dismissed the indictment. We reversed, stating (at 358 F.2d 441);
“... The essential wrong which the statute proscribes is the misappropriation of government property, knowing that it has been stolen. Thus, no particular value of the stolen property need be alleged or proved to sustain a conviction, though in such a case only the lesser punishment can be imposed....” United States v. Marpes, 198 F.2d 186 (3d Cir. 1952) (emphasis added).
In United States v. Marpes, supra, the defendant had been charged under two indictments alleging violations of 18 U.S.C. § 659. One indictment specified a value in excess of $100. The other, as in the instant case, was silent as to value. As to the latter Marpes indictment, the court stated;
“... The sentence of one year’s imprisonment imposed under Indictment No. 13295 was necessarily based upon a value of $100 or less, since the indictment did not allege value....” 198 F.2d 189.
The cases, cited by the government in an effort to sustain the sentence imposed upon Lancer, are inapposite, as in each of them, the indictments allege a value in excess of $100, an ingredient missing in the Lancer Indictment.
We agree with Lancer that, under Indictment 22119, his sentence could not exceed a prison term of more than one year. We hold, therefore, that it was error for the district court to impose a ten year sentence even though nine years and ten months of that sentence were suspended. The district court did not err, however, in following its ten year sentence with a probationary term of four years and ten months. As previously noted (note 18 supra), the probationary term need not be limited to the maximum prison sentence (in this case one year) prescribed by statute.
Lancer’s entire sentence of July 28, 1965, is not voided by our holding that the district court imposed an excessive prison term. The district court could validly have imposed a one year term and that period remains as Lancer’s sentence under Indictment 22119. United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631 (1894). We leave to the district court, on remand, the task of correcting Lancer’s sentence in accordance with our holding.
IV. The 1967 Revocation of Probation (18 U.S.C. §§ 3653, 3651, 4208)
(A). § 3653
18 U.S.C. § 3653 (see note 3 supra) specifies the action which may be taken by the district court after the probationer has been arrested for violation of probation. Under the terms of the statute, the district court could revoke Lancer’s probation (as it did) and require him either to serve the sentence imposed or any lesser sentence.
In the present case, the July 28, 1965 sentence is the “sentence imposed” within the meaning of § 3653. We have already determined that the July 28, 1965 sentence was excessive when entered (see III supra), but not void. Hence, when Lancer’s probation was revoked under § 3653, the maximum time which he could have been required to serve was limited to the time remaining under a one year (and not a ten year) sentence. Lancer had served two months in jail and, as we construe the record, had apparently been credited with four months of pre-sentence custody by the district court. Accordingly, as of March 29, 1967, Lancer had served six months in jail and could have been required to serve no more than another six months. The district court apparently acted under the first alternative of § 3653 in requiring Lancer to “serve the sentence imposed”. Translating what the district court intended to do in its order of March 29, 1967, into what it could validly do, the district court in effect committed Lancer for the unserved portion of a valid one year sentence (i.e., six months). It chose to do so under the terms of § 4208(b) and (c) (see discussion following) seeking such guidance as a study could furnish, prior to imposing final sentence.
Although the district court may have erred in its determination as to the term to which Lancer could be sentenced in both its July 1965 order and in its March 1967 order, nevertheless, it committed no error in the manner in which it applied the provisions of § 3653. The district court did in fact require service of the unserved portion of the original sentence which, we hold today, is limited to one year. This is precisely what § 3653, by its terms, authorizes.
(B). § 4208
While Lancer does not challenge the manner in which the district court applied § 3653 in its order of March 29, 1967, he does assert that the district court could not impose probation under 18 U.S.C. § 4208 once his probation was revoked. To answer this argument, two preliminary questions must be considered.
(1) Are the study provisions of § 4208(b) and (c) available where the sentence of the probationer does not exceed one year?
(2) Are these provisions available for use in conjunction with the revocation of probation under § 3653?
In answering these questions, we initially look to the relevant legislative history. 18 U.S.C. § 4208 was enacted in 1958 to provide additional information, services, and sentencing procedures to enable the sentencing judge to impose equitable and flexible sentences in keeping with the needs of the offender and public safety. It was designed to afford greater discretion to the district court judge, as well as to give the court (in § 4208(b) and (c)) discretionary access to the evaluative services of the Bureau of Prisons before being required to impose a final sentence.
§ 4208(a) provides the judge with alternative procedures in sentencing convicted offenders to imprisonment. Under this provision, one option open to the court is to fix the maximum term and leave parole eligibility at one-third of this maximum period. Alternatively, the parole eligibility date can be left to the Board of Parole, or it can be specified at less than one-third the maximum sentence imposed.
Still another technique (designed for flexibility in sentencing) was incorporated into the statute in the form of the study provisions found in § 4208(b) and (c). The House Committee Report described these sections in this fashion:
“Sub-Section (b) would make it possible for the court, when confronted with the necessity of making a sentence determination in a particularly difficult case, to commit the defendant (technically under the statutory maximum term) to the Attorney General for a complete study over a period of three to six months. At the completion of this period the court would be authorized to modify the sentence if the study’s findings and the judgment of the court indicate such action.... This provision would extend the court’s authority to modify a sentence to a period up to six months, thereby making feasible • detailed studies of selected defendants before a final sentence must be formulated.
After receiving from the Director of the Bureau of Prisons a summary of this study, the court in fixing the final penalty may affirm the original sentence or impose a modified sentence under any applicable provision of law.. Inasmuch as the origina[l] [sic] sentence of the court represents the maximum authorized by statute, any later modification by the court would constitute a reduction in sentence.... A number of judges have advised the Committee that this extension [up to six months] would be most helpful in enabling them to give more deliberate consideration to exceptional cases.
Sub-Section (c). prescribes that the Director of the Bureau of Prisons make the prisoner studies needed for parole eligibility and release determinations by the Board of Parole...,”
In its order of March 29, 1967, the district court acted under § 4208(b) and (c) rather than under § 4208(a). When the statutory language of Sub-section (b) is contrasted with that of Sub-section (a) (see note 4 supra) it is significant that two limitations found in Sub-section (a) are missing from Sub-section (b). Subsection (a) is prefaced by the words “Upon entering a judgment of conviction..” No such language appears in Sub-section (b).
Similarly, Sub-section (a) purports to be limited to cases in which “. the defendant [is] sentenced to imprisonment for a term exceeding one year..” Again, such language is conspicuously absent from Sub-section (b). These differences in statutory language, as well as the legislative history of § 4208, are relevant to our determination that the district court did not err in utilizing § 4208 in its March 29, 1967 order.
One Year Term
The fact that Sub-section (b) is silent with respect to the length of sentence required before a study can be ordered is consistent with our view that the purpose for the study provisions bears little relationship to the term for which the defendant can be sentenced. The purpose of Sub-section (b) was to assist the court in “making a sentence determination in a particularly difficult case.” There is no basis for assuming that difficult sentencing decisions occur only when the permissible sentence exceeds one year. Complicated factors, which a study by the Bureau of Prisons is designed to sort out, are just as likely to be present when the offense committed carries a maximum sentence of less than one year. Here, Lancer had pleaded guilty to eight separate indictments and had suffered incarceration on other, unrelated charges during the time his probation under Indictment 22119 should have been running. Whatever factors influenced the district court in its initial sentence of Lancer on, July 28, 1965 might or might not have been operative by March 29, 1967. The learned district judge, in an effort to determine the appropriate sentence in light of the intervening incarceration and the violation of probation, employed § 4208 for the precise purposes for which it was enacted. We find no logic in a construction of the statute which would prohibit the district court from utilizing the study provisions of § 4208(b) and (c) where the term of the offender is less than one year. We therefore hold that the “one year” limitation of § 4208(a) was not intended by Congress to bar use of § 4208(b) and (c) after probation has been revoked on an offense carrying a maximum penalty not exceeding one year imprisonment.
Interrelationship of §§ 3653 and 4208
It is argued that, after probation has been revoked, the district court is without authority to sentence pursuant to § 4208. This argument focusing on the first words of § 4208(a) (“Upon entering a judgment of conviction...”), characterizes this clause as a “time” limitation which restricts the use of § 4208 to the time of initial sentencing. We do not agree.
In the first instance, 18 U.S.C. § 4208(b), the section with which we are here concerned, makes no reference to and is not prefaced by, the arguably limiting language of Sub-section (a). The words “Upon entering a judgment of conviction... ” are not to be found in either § 4208(b) or (c).
Additionally, if we were to adopt the “time” characterization urged upon us, it would necessarily bring § 4208 into conflict with § 3653 — a result which we do not believe was ever intended. This inconsistency can best be shown by an illustration. An offender, placed on probation in 1972 with imposition of sentence suspended, violates probation in 1974. If § 4208 is not available for re-sentencing purposes in 1974, because 1974 is not the “time” when the (1972) “Judgment of Conviction” was entered, the “third alternative” of § 3653 (see note 26 supra) would be meaningless. Under § 3653, the court after revoking probation may (if imposition of sentence was suspended) “... impose any sentence which might originally have been imposed.” If sentence could have originally been imposed under § 4208, as it unquestionably could, then § 4208 is available for use upon revocation of probation under § 3653’s third alternative, and the “time” limitation argument urged against its use, must fall. If available under one alternative under § 3653, we see no logic in concluding that § 4208 is not equally available under the other resentencing provisions of § 3653.
Substantiating our conclusion that the prefatory language of § 4208(a) (“Upon entering a judgment of conviction.”) imposes no time restriction or other limitation on the use of § 4208(b) and (c), is Fed.R.Crim.P. 35 which permits a reduction in sentence within 120 days after sentence is imposed. If we were to adopt the construction urged upon us that § 4208 can be utilized only “Upon entering a judgment of conviction.” then there could be no modification of a sentence, (originally imposed under another statute (e.g. § 3651)), to a sentence pursuant to § 4208. We know of no such restriction required either by the express terms of the statutes in question or by reason and, hence, we are of the view that § 4208 was properly utilized by the district court in its March 29, 1967 order. (See n. 37 infra).
Reimposition of Probation
Our answers to the two preliminary questions result in our approving the use of § 4208(b) and (c) in the March 29, 1967 order. The ultimate question then remains whether § 4208 authorizes the reimposition of probation after probation has once been revoked. There is little precedent to guide us in this area. We do have, however, the views expressed by Mr. Barkin, Legal Counsel to the Bureau of Prisons who has written:
******
“It seems to me that the language of the statute makes it quite clear that once having revoked probation, the court must then impose a sentence. It may not revoke and thereupon reinstate the defendant to probation. The logic of this provision seems apparent. Since a court does not have to revoke even if the defendant violates the conditions of probation, but rather revoke only when it concludes the defendant should no longer remain at liberty in the community, it would be most incongruous if it immediately reinstated the defendant without anything new and material before it.
******
Whether a probation violator, who has been committed under the provisions of § 4208(b), can thereafter be reinstated to probation in view of the provisions of § 3653, as far as I know, has never been decided by a competent court. Again, ‘shooting from the hip,’ I take the view that probation is available to the Court under these circumstances. The rationale behind the preclusion of reinstatement after revocation as set forth in § 3653, is not applicable to this situation because here the court has new, and possibly significant information before it when the case comes before it for final disposition. It would seem most incongruous if the court would be unable to reinstate a defendant to probation if the new facts available to it clearly indicate this to be the proper course to take. In addition, in applying § 4208(b) in the first place the court clearly indicated that it was uncertain and wanted more information before making its final determination.”
******
Mr. Barkin’s analysis accords with the one case we have found in which a sentencing judge revoked probation and then utilized § 4208 for the purpose of obtaining information to aid the court in determining the sentence to be imposed. Smith v. United States, 297 F.Supp. 131 (N.D.Mo.1968). We recognize that in the instant case probation followed the use of § 4208(b) and (c) while in Smith imprisonment followed the revocation of probation. Nevertheless, the procedure employed by the district court in Smith in order to obtain information helpful to sentencing is the very procedure utilized by the district court here. We cannot distinguish the actions taken by the Smith court from those taken by the district court judge in the instant case. Both courts were seeking information for assistance in sentencing; both courts looked to § 4208(b) and (c) for that assistance; and both courts utilized information furnished in formulating the final action which they took. We do not believe that the fact that the Smith court imposed imprisonment after completion of the § 4208 study while the district court here imposed probation should affect the availability of § 4208.
In Smith a term of five years was imposed. The district court in this case, after utilizing the information received, determined that a term of “no years” should be imposed. We find little logic in an interpretation which would require us to hold that § 4208 might be available after revocation of probation if as little as one day’s imprisonment results but not if “no imprisonment” results.
An argument has been made that an examination of § 3651 (which provides for the imposition of probation) and § 3653 (which provides for revocation of probation) reveals a distinction between the terms “probation” and “sentence”. This distinction, it is argued, prevents the district court, once it revokes probation, from reimposing probation because the only discretion left in the district court at that point is to determine whether the probation violator should serve the original sentence imposed or a lesser sentence. If, as it is argued, “probation” is not a “sentence” within the meaning of § 3653, then the district court cannot reimpose “probation” because § 3653 requires service of the “sentence imposed” (Le., a prison term).
We recognize that in various statutory contexts a distinction is drawn between “probation” and “sentence”, despite the punitive features of probation. Whether or not that distinction would prevent a district court from reimposing probation immediately after it had revoked probation we need not decide in the factual context of this case. Here, the distinguished district judge after revoking probation committed Lancer to the custody of the Attorney General to serve the “sentence” originally imposed (nine years, ten months) (see p. 723 supra). The district court’s use of § 4208(b) and (c) resulted in Lancer’s imprisonment for at least three months during the course of the study. It was only after the initial § 4208(b) custody period had ended, and the study furnished to the district court, that probation was again ordered. Imposition of probation at the completion of the study is one alternative specifically contemplated by § 4208(b), which provides that:
“ • •. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.” (emphasis supplied).
******
Thus while we recognize that under existing law, probation may not be regarded as a “sentence” for all purposes we need only decide here that the proper use of § 4208 in conjunction with §§ 3653 and 3651, permits the reimposition of probation after its revocation. Further we perceive no practical difference between revocation of probation, followed by reimposition of probation, and continuation of probation in the first instance. It is not contended, for example, that the district court was without power to continue Lancer on probation, as it did in its order of June 10, 1968. Had the March 29th order been framed as a “continuation of probation” rather than a “revocation of probation” there could be little argument as to its validity. We do not think that a mechanistic argument seeking to distinguish between the two orders on the basis of the semantic differences between them justifies reaching a- different result in the case of each order. To argue that a district judge is authorized to continue an accused probation violator on probation but is without power to revoke probation (so that the violation can be fully entered in the probationer’s record) and then reimpose probation is to exalt form over substance.
We hold, therefore, that the provisions of § 4208(b) and (c) may be utilized in conjunction with revocation of probation proceedings under § 3653. If so employed, the district court after it has received the § 4208(c) study, may again impose probation, even though it had previously revoked probation. Accordingly, the district court here did not err in employing § 4208(b) and (c) in its March 29, 1967 order, and exercising its discretion in reimposing probation at the conclusion of the study. It did err, however, in imposing a greater probationary term than is permissible. The permissible term of probation that could have been imposed at that time was restricted to a maximum of five years less- the number of months theretofore served on probation by Lancer under Indictment 22119.
V. Service of Probation Term
Lancer also challenges the consecutive terms of probation imposed on July 28, 1965. He claims first, that his original four year, ten months probationary term under Indictment 22119 had expired by October 9, 1970 (the date the order was entered authorizing the warrant for his last violation of probation). Second, he claims that § 3651 authorizes no more than five years probation and that, therefore, the second five year probationary term imposed under Indictment 22173 was void and incapable of supporting the warrant ordered on October 9, 1970, and resulting detainer. We find no merit in either argument.
(A). Probation Served Under Indictment 22119
Lancer’s contention that his probation time under Indictment 22119 had been fully served by October 9, 1970 results from a mechanical computation of the gross time interval between the date of sentence (July 28, 1965) and the date of the order authorizing a warrant for his arrest (October 9, 1970). This gross interval (using 30-day months) totals five (5) years, two (2) months and eleven (11) days. It fails, however, to take into account time spent in custody, which we have calculated at approximately six (6) months and five (5) days.
Subtracting only “jail-time” served (six (6) months and five (5) days) from the gross time interval of five (5) years, two (2) months and eleven (11) days reveals that Lancer could not have served more than four (4) years, eight (8) months and seven (7) days on probation under this Indictment. Inasmuch as Lancer was required to. serve four (4) years, ten (10) months on probation under Indictment 22119, it is evident that he has not completed his initial probationary term.
The above calculation has deliberately excluded: other periods of incarceration spent under unrelated charges (see I supra ), time when Lancer was in violation of probation, or time spent during custody transfers following such violations. We have made this initial calculation by taking into consideration only the most evident deductions from the time Lancer claims to have spent on probation; that is, jail time served under this very Indictment. When other required deductions are made by the district court on remand, it will become apparent that Lancer still has a substantial period of time to serve on probation under Indictment 22119. Even calculating on the basis of the incomplete record before us, it is apparent that Lancer falls far short of having completed his probationary term under this Indictment.
Lancer was sentenced on July 28, 1965. He served two (2) months in jail; was released on September 28,1965; and was then taken to Ohio to face unrelated charges. On May 2, 1966 he began his four (4) year, ten (10) months probationary term in this district. A petition dated November 7, 1966 reveals that at least by that date Lancer was in violation of probation. (Up to this time, Lancer had spent six (6) months and five (5) days on probation). From November 7, 1966 until March 29, 1967, petitioner was in custody for probation violation. On March 29, 1967 the court revoked probation and committed Lancer for the § 4208(b) study. He was not returned to court for final sentencing until August 3, 1967. Hence, from November 7, 1966 to August 3, 1967 Lancer cannot be credited with having served probationary time.
On August 3, 1967 Lancer was to have resumed probationary status. The probation report, however, reveals that unrelated detainers had been placed against him which required the Philadelphia police to take him into custody. After having posted bail with respect to these detainers, he again absconded, and on January 10, 1968 was accordingly charged with probation violation. From that date until June 10, 1968, Lancer was in probation violation (or custody travel as a result of probation violation). Hence, we cannot credit any additional probationary time served from August 3, 1967 to June 10, 1968. The probation record reveals that after Lancer was continued on probation on June 10, 1968 he was returned to Iowa to serve a one year sentence, and was not released from confinement there until February 4, 1969.
From February 4, 1969 until February 20, 1970 (one (1) year and sixteen (16) days) he was again under probationary supervision under Indictment 22119 in this district. Adding this one (1) year, sixteen (16) days to his prior allowable probationary service (May 2, 1966 to November 7, 1966) of six (6) months, five (5) days, reveals that Lancer has served no more than one (1) year, six (6) months and twenty-one (21) days of his prescribed four (4) year, ten (10) months term.
(B). Probationary Terms Exceeding Five Years
Having determined from our review of the record that Lancer has yet to complete service of his probationary term
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Plaintiff-Appellee, v. Amos A. HOPKINS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry PETERMAN, Defendant-Appellant.
Nos. 81-1271, 82-1100.
United States Court of Appeals, Tenth Circuit.
July 10, 1984.
Submission to Panel in No. 82-1100 Vacated July 10, 1984.
Mary E. Bane, of Oyler, Smith & Bane, Oklahoma City, Okl., for defendant-appellant in 81-1271.
Jerome H. Mooney, Mooney & Smith, Salt Lake City, Utah, Michael P. Carnes, Dallas, Tex., James H. Barrett, Cheyenne, Wyo., for defendant-appellant in 82-1100.
David L. Russell, U.S. Atty., John R. Osgood, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee in 81-1271.
Richard A. Stacy, U.S. Atty., Francis Leland Pico, Asst. U.S. Atty., Cheyenne, Wyo., for plaintiff-appellee in 82-1100.
Before SETH, Chief Judge, HOLLOWAY, McWilliams, barrett, mckay, LOGAN and SEYMOUR, Circuit Judges.
SETH, Chief Judge.
These two cases were consolidated for en banc consideration on the briefs on motion by the court.
In United States v. Hopkins, 81-1271, the defendant was tried and convicted on a multiple count indictment charging mail fraud (18 U.S.C. §§ 2 and 1341) and conspiracy to use the mails to defraud. The only issue considered by the court en banc was whether adequate instructions had been given on the defense of good faith. The panel opinion appears at 716 F.2d 739 (10th Cir.).
In United States v. Peterman, 82-1100, the basic defense to the mail fraud charge was good faith. The defendant requested an instruction on the point and it was refused. The case was originally submitted to a panel of this court but no opinion was filed. As mentioned, it was consolidated with United States v. Hopkins for en banc consideration of the instruction on the good faith defense.
We have stated in several cases that “good faith” is a defense to charges of using the mails to defraud. This was so held in Steiger v. United States, 373 F.2d 133 (10th Cir.), wherein we said:
“Good faith is a complete defense to a charge of using the mails to defraud in violation of § 1341, supra, and a defendant is entitled to proper instructions on the theory of his defense, if, as here, there is evidence to support such theory.”
In Steiger, the charges were brought under 18 U.S.C. § 1341. See also United States v. Roylance, 690 F.2d 164 (10th Cir.), United States v. Westbo, 576 F.2d 285 (10th Cir.), and Sparrow v. United States, 402 F.2d 826 (10th Cir.). Thus if the defense of good faith has been interposed the defendant is entitled to an instruction directly on the issue provided there is sufficient evidence to support the theory and such an instruction is requested.
Whether there is “sufficient” evidence to support the theory is determined as in any other trial where the question arises as to whether a particular matter should be submitted to a jury. In mail fraud cases there is sufficient evidence when the jury could reasonably find from such evidence that the defendant in good faith believed that the plan would succeed, that the promises made would be kept and the representations carried out. This is best stated again in Steiger v. United States, 373 F.2d 133 (10th Cir.):
“Each defendant interposed the defense of ‘good faith.’ There was evidence from which the jury could have found that each defendant in good faith believed that the referral plan was practical and would succeed, however visionary in retrospect it may seem to be, and that the promises given would be kept and the representations made would be fulfilled.”
That the plan, with the benefit of hindsight at time of the trial, may seem to have been somewhat visionary or not completely practical makes no difference if the defendant actually believed the plan would succeed, that the representations would be carried out and the promises were true. In Hawley v. United States, 133 F.2d 966 (10th Cir.), we also referred to “visionary plans” but of course not part of a plan to defraud. Thus the approved instructions there covered promises made in good faith and “not as a part of a deliberate plan or scheme to defraud.” The “good faith” in Hawley included the above requirements as to the representations , and promises as necessary ingredients with the actual belief in the plan. Requested instructions which were approved by the court and instructions given appear in the cited cases.
The determination by the jury as to whether a good faith defense has been established requires a consideration under proper instructions of elements which are all peculiarly within the province of the jury.
The “good faith” instruction is required to be given as a separate subject. Thus instructions on wilfulness, on aspects of intent, on untruth of representations or fraudulent statements are not sufficient for this purpose. There must be a full and clear submission of the good faith defense as such. United States v. Steiger, 373 F.2d 133 (10th Cir.). See also United States v. Beitscher, 467 F.2d 269 (10th Cir.); Mesch v. United States, 407 F.2d 1286 (10th Cir.).
Our holding as to the need for a good faith instruction in the above cases is intended to apply to both substantive and conspiracy counts for mail or wire fraud.
In United States v. Westbo, 576 F.2d 285 (10th Cir.), we considered a requested instruction which was directed to intent and was so evaluated. The case does not constitute a holding on the issue here decided; however, to the extent it may be considered to be contrary to this opinion, it is overruled.
81- 1271 — United States v. Hopkins:
The opinion in United States v. Hopkins, our No. 81-1271, which was originally entered, and which appears at 716 F.2d 739 (10th Cir.), is withdrawn.
In our initial consideration of the record in Hopkins it was determined that there was sufficient evidence to support an instruction on defendant’s theory of good faith. The defendant requested instructions which were proper. The instructions given did not submit the issue of good faith. The judgment of the trial court in United States v. Hopkins, 81-1271, as to Counts I through XI, must be and is set aside, and the case is remanded for a new trial as to such counts. IT IS SO ORDERED. However, as to Count XIV for conspiracy there was insufficient evidence to support the judgment as to that count, and on remand it must be dismissed, and IT IS SO ORDERED.
82- 1100 — United States v. Peterman:
In Peterman, the charge was brought under 28 U.S.C. § 1291. We must and do hold that there was sufficient evidence to require the submission of the good faith defense to the jury. As in Hopkins, herein considered, an adequate instruction as to the good faith defense was requested but not given, and the judgment must be set aside and the case remanded for a new trial. IT IS SO ORDERED.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_origin
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant.
No. 24418.
United States Court of Appeals, Ninth Circuit.
July 8, 1971.
Ely, Circuit Judge, dissented and filed opinion.
William N. Fielden (argued), La Jol-la, Cal., for appellant.
Shelby Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
Before MERRILL and ELY, Circuit Judges, and CROCKER, District Judge
Honorable M. D. Crocker, United States District Judge for the Eastern District of California, sitting by designation.
PER CURIAM:
Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545.
Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970).
Appellant also asserts as error the court’s refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand. Appellant contends, however, that he was entitled to require the witness to take the stand and invoke his privilege in the presence of the jury. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), holds to the contrary and we agree.
Other points asserted by appellant we find to be without merit.
Judgment affirmed.
. Although (as Judge Ely mentions in his dissent, footnote 1), the drugs were found secreted in a part of the car that had been searched when it crossed the border, there was evidence from which it could be deduced that the drugs had originally been hidden beneath the car in an area that had not been searched.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_treat
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
LOEHR et al. v. UNITED STATES.
No. 508.
Circuit Court of Appeals, Tenth Circuit.
Dec. 21, 1931.
J. W. Ward, of Wichita, Kan., for appellants.
Dan B. Cowie, Asst. U. S. Atty., of Topeka, Kan.
Before COTTERAL and PHILLIPS, Circuit Judges, and POLLOCK, District Judge.
Rebearing granted February 26, 1933.
POLLOCK, District Judge.
Appellants, who were defendants below, and one John Loehr were indicted on four counts of an indictment charging them jointly with violations of the Volstead Act (27 USCA § 1 et seq.). Count 1, with the manufacture of liquor; count 2, with possession of equipment designed for manufacture of liquor; count 3, possession of liquor; count 4, maintaining a nuisance.
John Loehr pleaded guilty to all counts. Warner was convicted on aE counts, and Tony Loehr was convicted on counts two and four. Defendants below appeal.
At the conclusion of the governments evidence Tony Loehr moved his discharge on the ground there was no competent evidence tending to show his guEt. This mo tion was overruled and excepted to. The enforcement officers testified they found a stiE in operation on the premises; at the time they found no one on the premises except Warner, who said he was employed by John Loehr to plow com. When found his hat and coat were in the stElhouse. The question presented by both defendants is the sufficiency of the evidence to sustain the conviction.
WhEe Tony Loehr is a son of John Loehr, yet he did not Eve with his father, and he and a fellow by the name of Fred Neises had been absent from Sedgwick county on a trip to Mexico, Tex., etc., for several weeks, and having just returned home rode out home with his father and mother when the officers arrested them as they drove in home. There is no possible evidence of his having in his possession equipment to manufacture Equor or of his maintaining a nuisance. His father did, but he pleaded guEty and was punished.
To our minds the evidence against this defendant is altogether insufficient. There is hardly enough to create even a suspicion of his guilt. On his trial he was clothed with the presumption of innocence unless and until the government established his guilt beyond a reasonable doubt, and this by competent evidence, not by mere suspicion. A person may not be guessed guilty of a criminal offense as the jury must have done in this case. The case was very poorly defended. The record was not weE saved to protect the rights of defendant, but in such a ease a reviewing court, having the record with aE the evidence before it cannot shut its eyes and aEow a mere suspicion or guess to prevaE where competent evidence is lacking to sustain a conviction for crime. Reynolds v. United States (C. C. A.) 48 F.(2d) 762.
Coming now to the defendant Warner, said by the officers to have run away from the bam in which the stiE was located, when they approached: His hat and coat were in the building in another place. There was a cot there on which he had lain. The evidence was that he had been employed by John Loehr to plow com and had worked there but a few days plowing com at a wage of $3 per day. Defendant testified he did not run away when the officers came but simply got up from where he had been sleeping and went out when he heard a ear drive up. He further testified while he knew the stiE was there he had nothing to do with it or the making of the whisky. The accusations are that this defendant manufactured whisky, was in the possession of materials designed for the purpose of manufacturing whisky, with the possession of whisky, and the maintenance of a common nuisance. These are the charges against him. The property where the stiE was located was not his property. He is not shown to have done any act at the still. A11 that is shown to have been done by him is just as consonant with his innocence as his guEt. The fact he knew John Loehr had a still on his property, made and sold whisky, would not prevent him from being employed on the premises for an altogether different work or purpose. Again, are the suspicions aroused against him enough on which to eonviet of á felony beyond a reasonable doubt? The presumption of his innocence weighs more in the face of the known or proven facts in this case than the conjectures and the suspicions shown." The evidence of guilt is entirely lacking. He may have been guEty; he may not be. It is not within the province of a jury to return a verdict of guEty unless the evidence shows guilt beyond a reasonable doubt. WhEe this is a question for the jury, if there is proper and competent evidence of his guilt here such evidence was not given.
As before stated, defendant was defended and his rights poorly guarded. There is no question in this case on which error can be properly assigned save the one, there is no competent evidence to show his guEt. ’ This is a question of law and may be examined by the court to prevent a miscarriage of justice in a felony ease. Edwards v. United States (C. C. A.) 266 F. 848, and many other cases on this question there cited.
It foEows, the judgment of conviction must be reversed as to both defendants for want of evidence to support the same, and a new trial ordered.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. BURMINGHAM, Andrew, Appellee.
No. 85-3159.
United States Court of Appeals, Third Circuit.
Argued Dec. 3, 1985.
Decided April 17, 1986.
J’Ada M. Finch-Sheen, Atty. Gen., Jacqueline A. Drew, (Argued), Charlotte Ama-lie, St. Thomas, U.S. Virgin Islands, for appellant.
John J. Mahon, (Argued), Charlotte Ama-lie, St. Thomas, U.S. Virgin Islands, for appellee.
Before HUNTER, GARTH, and BECKER, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
On this appeal, the Government as appellant argues that Andrew Burmingham, who had been charged with various criminal offenses under the Virgin Islands Code, had not been deprived of his right to a speedy trial, even though the Information charging him was filed in the Territorial Court on December 1, 1980 and some eighteen months later no trial had yet been had. The Territorial Court denied Burmingham’s motion to dismiss the Information under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. and Federal Rule of Criminal Procedure 48(b). After a nonjury trial held in May, 1982, Burmingham was convicted on all four counts of the Information. On appeal to the district court this decision was reversed. We now vacate the order of the district court.
I.
Appellee Andrew Burmingham was involved in a fight with one Selvin Joseph, in which Burmingham attacked Joseph with a machete. The only witness to this fight, aside from the two participants, was Ruth Joseph, formerly the girlfriend of Burming-ham and now Selvin Joseph’s wife. Both men were wounded and required hospital treatment. Burmingham was arrested on November 26, 1980. On December 1, 1980, the Government filed an Information in the Territorial Court. Burmingham was charged with three counts of third degree assault and one count of unlawful possession of a deadly weapon during the commission of a crime of violence, all in violation of Virgin Islands statutes. He was arraigned on December 9, and the case was subsequently set for trial on March 30, 1981.
On March 11, 1981, Burmingham moved for dismissal of the Information under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. and Fed.R.Crim.P. 48(b). The Territorial Court took Burmingham’s motion for dismissal under advisement, along with other similar motions, in order to seek an in banc answer of that court to the question of whether the Speedy Trial Act was applicable to criminal proceedings in the Territorial Court. However, the Territorial Court never considered the question in banc.
Some thirteen months later, on April 16, 1982, the Territorial Court denied Burming-ham’s motion to dismiss the charges. Ironically, it was Burmingham’s assertion of this purported statutory speedy trial claim that stretched the delay so that it exceeded eight months. LaFave & Israel, Criminal Procedure § 18.2, at 405 (quoting Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980)).
In denying Burmingham’s motion, the Territorial Court followed Government of the Virgin Islands v. Albert John Quetel, 18 V.I. 145 (Terr.Ct.1982), which held the Speedy Trial Act inapplicable to Territorial Court proceedings. The Territorial Court went on to hold that dismissal pursuant to Rule 48(b) was not warranted. Applying the constitutional speedy trial analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the court concluded that:
Although there has been excessive delay in bringing the defendant to trial, and the reason for the delay is chargeable mostly to the court, these factors are substantially outweighed by the fact that the delay was both necessary and justifiable, by the defendant’s failure to assert his right to a speedy trial, and particularly by the fact that the defendant has not been prejudiced by the delay.
Following the denial of his speedy trial motion, on May 14, 1982, Burmingham was tried in a bench trial and was convicted on all four counts.
On appeal to the district court, Burming-ham for the first time raised a Sixth Amendment claim, while also pressing his Rule 48(b) and Speedy Trial Act claims. The district court applied the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to Burmingham’s constitutional claim. Unlike the Territorial Court, the district court concluded that Burmingham had been denied his right to a speedy trial. By its order of February 27, 1985, the district court vacated the judgment and conviction entered by the Territorial Court, and dismissed the Information filed against Burmingham.
II.
The Government contends that Burming-ham, by. not raising his Sixth Amendment claim at the trial level, has forfeited his right to do so now. This argument is supported by the in banc holding of this court that “it will not entertain arguments on appeal based on objections not timely raised below.” United States v. Gibbs, 739 F.2d 838 (3d Cir.1984).
In Gibbs, this court held that a constitutional objection taken after both parties had rested at trial, and which raised issues different from the evidentiary (statutory) objection taken during trial, was not sufficient to preserve the later raised constitutional issue. Gibbs had objected to certain co-conspirator evidence at trial, referring to Federal Rule of Evidence 801(d)(2)(E) as the basis for his objection. No constitutional (Sixth Amendment) objection had ever been raised before the parties had rested. After testimony had closed and the parties had rested, and the court had refused to reconsider its evidentary ruling, Gibbs for the first time made a general Sixth Amendment motion to strike the evidence. Gibbs had contended that the Government had the burden of proving the unavailability of a witness in order to adduce hearsay testimony from a co-conspirator. This challenge too was denied by the district court.
On appeal to this court, we noted that issues different from the Rule 801 objection were raised by the Confrontation Clause objection. We also observed that the Government had not been given the opportunity to meet the objection — primarily, we observed that the Government could not at that stage satisfy the issue of witness availability. We did not reach the merits of Gibbs’ argument, holding instead that the issue had not been preserved for appeal.
To the extent that both Gibbs and Burm-ingham first raised statutory objections and only thereafter raised constitutional objections, it would appear, at least on the surface, that no distinction could be drawn between the two cases. In such a situation, Gibbs obviously would control and we would be compelled to hold that Burming-ham, by failing to raise his constitutional objection before the Territorial Court, came within the Gibbs doctrine and had not preserved a constitutional issue for review in this court.
However, there are two significant differences between Gibbs and Burmingham. First, whereas in Gibbs the constitutional objection could have been taken at the same time as the evidentiary objection (thereby affording the Government time to respond to the claimed deficiency in proof), here Burmingham, at the time he made his motion under the Speedy Trial Act and Rule 48(b), could not legitimately have raised a constitutional claim that his speedy trial right had been violated. Burmingham’s motion before the Territorial Court was made less than five months after his arrest and indictment. A delay of that length is not sufficiently prejudicial to trigger a constitutional inquiry. See La Fave & Israel, Criminal Procedure § 18.2, at 405. Our research has disclosed no case which we find persuasive that has held a delay of less than five months to constitute a violation of the constitutional right to a speedy trial.
Second, while concededly Burmingham did not, and we believe could not, have raised a constitutional challenge before the Territorial Court, his contention that the indictment should be dismissed under Rule 48(b) led the Territorial Court to engage in the same analysis to resolve that issue as it would have been obliged to engage in had the constitutional claim been presented to it. The Territorial Court in Burming-ham did in fact employ the same analysis in a statutory context that it would have employed in the constitutional context. Thus, the Government was not, and could not have been, prejudiced by the failure of Burmingham to specifically delineate the constitutional claim under which he subsequently proceeded. This was not the case in Gibbs, where the statutory analysis differed substantially from the Sixth Amendment, thus resulting in prejudice to the Government. We are satisfied, therefore, that Gibbs does not control the preservation issue raised by the Government in this case.
Accordingly, we proceed to the merits of the Government’s argument that Burming-ham’s Sixth Amendment right to a speedy trial was not violated.
m.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court adopted a balancing test to determine whether a delay in bringing a defendant to trial infringed upon his right to a speedy trial. That test, recently reaffirmed in United States v. Loud Hawk, — U.S.-, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), requires that we consider four factors: the length of the delay; the reason for the delay; defendant’s assertion of the right; and prejudice to the defendant. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192.
Prejudice is the key factor here, and its absence is decisive in this case. The Supreme Court has identified three interests of defendants that may be prejudiced by denial of the right to a speedy trial: preventing oppressive pretrial incarceration; minimizing anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193; see also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).
In United States v. Loud Hawk, — U.S. -, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), the Court laid particular emphasis on the first of the three interests, stating that “the Speedy Trial Clause’s core concern is impairment of liberty,” id. 106 S.Ct. at 654, and pointing out that in that case, “despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeal,” id. at 656-57. Similarly here, Burmingham was not incarcerated prior to his trial.
Nor is there evidence in the instant case of any unusual burden of anxiety. The district court, in its opinion holding that Burmingham had been denied his right to a speedy trial, referred to the anxiety of the accused as the only element of prejudice. Yet it recognized that Burmingham’s anxiety was no greater than that which “inevitably attend[s] a criminal prosecution.” A-7.
Finally, there was no suggestion here that Burmingham’s defense had been in any way impaired by the delay. Given that there were only two witnesses, and that those witnesses had good reason to remember the events in question, there is little likelihood of prejudice to Burmingham’s defense.
In the absence of prejudice, we might nevertheless be inclined to look more favorably on Burmingham’s claim if there were evidence that the government had “deliberately attempt[ed] to delay the trial in order to hamper the defense,” Barker, 407 U.S. at 531, 92 S.Ct. at 2192, or even if the delay were in any way attributable to the prosecution. Here, responsibility for the delay rests with the Territorial Court. The initial three month delay was due to a crowded docket in the Territorial Court, and the subsequent delay was due to that court’s attempt to reach a decision on the applicability of the Speedy Trial Act to the Territorial Court.
In Loud Hawk, the Supreme Court considered a delay similar in nature to that in the instant case. There, an interlocutory appeal by the government to the Court of Appeals for the Ninth Circuit, though expedited, consumed nearly two years. The Supreme Court noted that under Barker a delay from overcrowded courts should be weighed against the government, but less heavily than deliberate delay. The Court went on to observe that there had been “no showing of bad faith or dilatory purpose on the Government’s part” Loud Hawk, 106 S.Ct. at 656, and gave little weight to the resulting delay.
The delay in the instant case was justified by the Territorial Court’s desire to seek clarification of the law. Like the delay in Loud Hawk, it does not weigh strongly, if at all, against the government.
Absent impairment of the defense, pretrial incarceration, or any evidence of unusual psychological distress, and absent unjustifiable procrastination by the government, we do not believe that a delay of eighteen months between indictment and trial requires us to grant Burmingham’s speedy trial claim predicated on Barker v. Wingo.
Accordingly, the judgment of the district court will be vacated and the case remanded with instructions to the district court to reinstate the judgment and sentence of the Territorial Court.
. The district court did not address the issue of the applicability of the Speedy Trial Act, nor did Burmingham raise it on appeal before us. We therefore do not address that issue here.
. We observe that the Supreme Court has recently decided that the Confrontation Clause does not require a showing of unavailability as a condition to admission of the out-of-court statements of a non-testifying co-conspirator. United States v. Inadi, — U.S.-, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).
. Rule 48(b) provides as follows:
Rule 48. Dismissal
******
(b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information of complaint.
. In relevant part. Sixth Amendment provides as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed____
U.S. Const, amend. VI.
. The government does not rest its argument on a failure by Burmingham to assert his right to a speedy trial.
. This case is thus distinguishable from United States v. Dreyer, 533 F.2d 112 (3d Cir.1976), in which we granted the speedy trial claim of Audrey Ellen Goldsmith. The time between indictment and trial in that case was two and a half years. Goldsmith provided evidence that she had experienced severe mental disturbance during that period.
. The Territorial Court could have granted relief to Burmingham under Rule 48(b) even though such relief was not constitutionally required. See, e.g., United States v. Rich, 589 F.2d 1025, 1034 (10th Cir.1978); United States v. Cartano, 420 F.2d 362, 363 (1st Cir.1969), cert. denied, 397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671 (1970). However, it declined to do so. Instead, it applied the constitutional test of Barker v. Wingo. Under such a circumstance, our holding that the district court's constitutional analysis under the same test was flawed requires reinstatement of the Territorial Court’s judgment.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
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songer_appel1_3_3
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
NATIONAL LABOR RELATIONS BOARD v. LEHIGH PORTLAND CEMENT CO.
No. 6574.
United States Court of Appeals Fourth Circuit.
Argued June 4, 1953.
Decided July 21, 1953.
Norton J. Come, Attorney, N. L. R. B., Washington, D. C. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Washington, D. C. and Edmond F. Rovner, Attorney, N. L. R. B., New York City, on brief), for petitioner.
Robert H. Kleeb, Philadelphia, Pa. (Souser & Schumacher, Philadelphia, Pa., on the brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
The question in this case is whether the Lehigh Portland Cement Company was required by §§ 8(a) (1) and 8(a) (5) of the National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq., to bargain with the United Cement, Lime and Gypsum Workers International Union, the bargaining representative of 254 out of a total of 288 of its employees, in respect to the rental of 65 dwelling units owned and maintained by the company in the vicinity of the plant. The Labor Board held that the housing units were a mandatory subject of the bargaining provision of the Act, 101 N.L.R.B. 1010, and has petitioned this court to give effect to its order whereby it directed the company to cease and desist from refusing to bargain collectively with the union in respect to the rentals.
The company maintains a plant for the manufacture of cement at Fordwick, Virginia, an unincorporated community of less than 1,000 people. The company now owns 65 dwelling units located within a mile of the plant. This number remains out of a total of 150 units which were similarly located when it acquired the plant in 1916. Five of the 65 units are leased to non-employees of whom 3 were employed when their tenancy began; one is the mother of an employee who pays the rent, and one is the sublessor of an employee of the company; of the remaining 60 units 10 are rented to supervisory and clerical employees,who are outside the bargaining unit, and 50 are rented to employees who are members of the bargaining unit. The company pursues the policy of renting its houses to its employees and maintains the present allotment as between employees within and employees without the bargaining unit. Housing in the area is in short supply and consequently there is a demand for the company houses. There were 10 applications for them at the time of the hearing. Applications are not granted in the order in which they are filed or on the basis of the seniority of the applicants. The houses are maintained and kept in repair by the company. The rents in most instances are deducted from the wages of the employees and in other cases the rents are paid in cash at the company’s, office.
The rental of the houses which had not been raised for fourteen years prior to 1951 were uniformly low. The company gave notice in March, 1951 that the rents, would be raised as of May 1, 1951 and this announcement led to a protest on the part of the tenants and a request by them and by the union that the company first take up the matter with the union. The company, however, refused on the ground that the rent of the houses was not subject to collective bargaining, and the charges of refusal to bargain were then made which led to the instant pioceeding. The question of rentals has not entered into the bargaining between the company and the union during the nine years in which the union has been the accredited representative of the men.
A majority of the employees, 188 in number, do not live in company houses. Of these 131 own their own houses and 57 rent privately owned houses, located as follows: 37 own houses in the Fordwick area; 56 own houses in the nearby Craigs-vilie area, and 35 rent houses in the Craigs-ville area, all of which are within two miles of the plant; 11 employees own houses in Augusta Springs and 11 rent houses in Augusta Springs, which are located within three to six miles of the plant; 24 employees own houses in Goshen and 9 rent houses in Goshen located within three to six miles from the plant; two employees own homes in Swoope, which is fourteen miles from the plant, and one owns a house in Headwaters, which is twenty miles from the plant; one employee rents a house in Staunton, Virginia, and one rents a home in Waynesboro, Virginia, which are located twenty-three miles and thirty five miles respectively from the plant.
The position of the employer is that the amount of rent wdiich it charges lor its houses does not i elate to “rates of pay, wages, hours of employment, or other conditions of employment”, and hence it is not a matter as to which it is required to bargain with the union under § 9 of the statute. It points out that the statute does not purport to interfere with an employer’s freedom of contract and hence it is at liberty to deal with its property as it sees fit, unless in so doing it does something which affects the conditions of employment under which its employees work; and it contends that these conditions are not affected in this case because the company’s houses are not a necessary part of the business and employees are not required to occupy company houses in order to hold their places at the plant. Hence it is said that the present case is not covered by our decision in N. L. R. B. v. Hart Cotton Mills, Inc., 190 F.2d 964, where we said that if company houses are a necessary part of an employer’s enterprise or arc rented to its employees at such a rate as to constitute a substantial part of their pay, they are a proper subject of collective bargaining.
Tn that case, however, we did not lay down the general proposition that company houses are never the proper subject of collective bargaining unless they are a necessary part of the enterprise or their occupancy affects the workers’ pay. It is sufficient to bring them within the field of collective bargaining if their ownership and management materially affects the conditions of employment. We agree with the Board that such is the case at the company’s plant at Fordwick. That no increase in rent was made between 1937 and 1951 indicates that the rents have been below the prevailing rate; and this circumstance coupled with the convenience of living nearer to the place of work than the great majority of the employees has given the occupants of the company’s houses substantial advantages which undoubtedly affected their conditions of employment.
Obviously the company’s ownership and control contribute to this result. The extent of its influence has of course been curtailed by the reduction in tlie number of company houses from 150 to 65 during the period of the company’s ownership. Nevertheless it is still substantial; and it bears directly on the crucial question in the case, since the retention by the company of a sufficient number of dwellings to house 25 per cent of the employees near the plant in an area where houses are hard to get gives the company a means of affecting the living conditions of a large part of its working force through the power of granting or withholding the privilege and of fixing of terms upon which it may be exercised. Under the circumstances of thif case the matter is of sufficient importance as to require its submission to the process of collective bargaining. The order of the Board will be
Enforced.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
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songer_r_fed
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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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MATTEL, INC., a Delaware Corporation, Appellant, v. AZRAK-HAMWAY INTERNATIONAL, INC., d/b/a Remco Toys, a New York corporation, Ezra Hamway, Roland Paris, and Marvin Azrak, Appellees.
No. 518, Docket 83-7813.
United States Court of Appeals, Second Circuit.
Argued Nov. 14, 1983.
Decided Dec. 23, 1983.
A. Sidney Katz, Welsh & Katz, Chicago, Ill. (Eric C. Cohen, Pamela McKenna, Welsh & Katz, Chicago, Ill., Alexander R. Suss-man, Robert J. Mandel, Fried, Frank, Harris, Shriver & Jacobson, New York City, of counsel), for appellant.
Anthony F. LoCicero, Amster, Rothstein & Engelberg, New York City (Jesse Roth-stein, New York City, of counsel), for appel-lees.
Before OAKES, MESKILL and PIERCE, Circuit Judges.
PER CURIAM:
Mattel, Inc. (Mattel), the manufacturer of a popular series of 5⅕" action figure toy dolls sold under the registered trademark name of “Masters of the Universe,” brings an expedited appeal from a decision of the United States District Court for the Southern District of New York, Richard Owen, Judge. Judge Owen refused to issue a preliminary injunction against Azrak-Hamway International, Inc. (Remco), and certain Remco officials, to stop production and sale of Remco’s series of 52½" action figure toy dolls titled the “Warlords,” which were designed to compete with Mattel’s “Masters of the Universe” dolls. Mattel claims that by producing and selling the “Warlord” dolls, Remco infringes upon Mattel’s registered copyright in the “Masters of the Universe” dolls in violation of 17 U.S.C. §§ 106, 501 (Supp. V 1981), its federal trademark rights in violation of 15 U.S.C. §§ 1115(b), 1125(a) (1976), and its common law right under New York law to be protected against unfair competition.
The standard in the Second Circuit for injunctive relief, as set forth, e.g., in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979), requires a showing of two things, first, irreparable harm and, second, “either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Judge Owen held that Mattel did not make a showing that either prong of the second requirement was met. We agree.
The “Masters of the Universe” dolls are a series of dolls with different heads, clothing, and names, but all sharing a common torso, which is a sculptor’s exaggerated rendering of a bodybuilder’s body with shortened legs. Likewise, the Remco series of dolls all share a body with overdeveloped musculature and legs proportionately shorter than the average human being’s. The Remco dolls all have names, heads, feet, hands, and clothing different from the Mattel dolls, with their names and costumes designed so that the dolls represent certain comic book figures. The Remco dolls’ bodies also have pectoral, abdominal, and other musculature that differs in minor though significant detail from that of the Mattel dolls. Remco obtained a license from DC Comics, Inc., to model its dolls after their comic book figures “Warlord,” “Arak,” and “Hercules unbound.” Both the Mattel and the Remco dolls are posed in a similar crouching position which may be likened to the fighting stance of a Neanderthal man or that of a latter-day professional wrestler approaching his opponent. As the district court found, any claim of uniqueness in the pose is “frivolous.”
The Copyright Claim
Mattel’s claim is that Remco copied the torso of its toy, which it considers the essential part of the doll. While it is true, of course, that it is possible to infringe while copying only a part of a work, see, e.g., Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 744 (S.D.N.Y.) (copying of four notes and two words out of an entire song may constitute infringement), aff'd, 623 F.2d 252 (2d Cir.1980), we agree with the district court that Mattel did not demonstrate substantial likelihood of success in proving infringement of its “Masters of the Universe” torso.
Mattel owns a registered copyright in its dolls. To prove infringement, it must either produce proof of direct copying or show that Remco had access to its dolls and that the protectable features of the Remco doll’s body are substantially similar to the Mattel doll’s body in the eyes of the average lay observer. E.g., Warner Brothers Inc. v. American Broadcasting Co., 654 F.2d 204, 207-08 (2d Cir.1981). Remco gave its sculptor a Mattel doll to show him what kind of doll it wanted, and to insure that Remco’s doll would not appear to be the physically weaker of the two toys. But the district court apparently credited the evidence of Remco’s expert on human anatomy that the Remco doll was not a direct copy of the Mattel doll, but rather was simply another artist’s rendering of the human form with an exaggerated musculature. The artist who sculpted the model for the Rem-co figure had body-building and comic magazines as well as other material from which he worked.
. Though the dolls’ bodies are very similar, nearly all of the similarity can be attributed to the fact that both are artist’s renderings of the same unprotectable idea — a superhuman muscleman crouching in what since Neanderthal times has been a traditional fighting pose. The rendering of such an idea is not in itself protectable; only the particularized expression of that idea, for example, the particular form created by the decision to accentuate certain muscle groups relative to others, can be protected. See, e.g., Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir.1966). In this case a lay observer would recognize certain differences in the way the two sculptors have created images of strength by overemphasizing certain muscle groups. Thus, the district court reasonably found that the only parts of the dolls’ bodies that constitute the protectable expression of an idea are not substantially similar. See Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 627 (2d Cir.1962) (Clark, J., dissenting).
The Trademark Claims
To succeed on either the state unfair competition claim or the federal trademark claim, Mattel had to show that Remco copied certain nonfunctional design features of the Mattel dolls which had developed a secondary meaning in the eyes of consumers so that consumers were misled into believing that the two dolls came from the same source. E.g., American Footwear Corp. v. General Footwear Co., 609 F.2d 655 (2d Cir.1979). The court below correctly found that particular arrangement of musculature in the “Masters of the Universe” model has not developed such a secondary meaning in consumers’ eyes so that they falsely associate Remco’s dolls with Mattel. The dolls all have different names, clothes, and heads, and Mattel provided insufficient evidence that consumers were mistaking Remco dolls for Mattel dolls because of their similar bodies. In addition to offering direct evidence of actual confusion by customers, retailers, salesmen, or the like, what has become a usual way to demonstrate either consumer confusion or secondary meaning, in a case where the existence of secondary meaning or consumer confusion is not otherwise obvious, is for the proponent to undertake some form of survey of consumer attitudes under actual market conditions. See, e.g., Information Clearing House, Inc. v. Find Magazine, 492 F.Supp. 147, 160 (S.D.N.Y.1980). Here for preliminary injunction purposes Mattel took no such survey, and it provided little other evidence demonstrating consumer confusion.
Mattel also claims that Remco violated § 32(1)(a) of the Trademark Act of 1946, 15 U.S.C. § 1114(1)(a) (1976), by including the phrase “PLAY WITH ... MASTERS OF THE UNIVERSE ... AND OTHER 5½" ACTION FIGURES” on packages selling its Warlord dolls. That section makes it a violation to use any registered trademark without permission in connection with the sale of goods. Section 33(b)(4) of that Act, 15 U.S.C. § 1115(b)(4) (1976), however, allows a competitor to use another’s registered trademark to describe aspects of one’s own goods, even to indicate that one’s product is a legitimate copy of another’s product. See, e.g., Societe Comptoir de L’Industrie Cotonniere Etablissements Boussac v. Alexander’s Department Stores, Inc., 299 F.2d 33, 36 (2d Cir.1962). The district court had sufficient evidence before it to support its implicit conclusion at this stage of the proceedings that Remco’s purpose in using the “Masters of the Universe” trademark in selling its dolls was to describe to purchasers a use of its own product, and did not constitute a bad faith effort to deceive consumers into thinking they were buying a Mattel toy. Moreover, the phrase in question was located on the package in a place and manner that only the close reader would notice.
The Balance of Hardships
Mattel is, or was at the time of the district court hearing, already selling as many “Masters of the Universe” dolls as it can produce, and for inadequately explained reasons it delayed bringing this action until just before the start of the Christmas selling season. The district court therefore correctly concluded that an injunction would hurt Remco more than it would help Mattel, and that the balance of hardships does not tip decidedly in Mattel’s favor.
Remco has benefited from Mattel’s success in developing a market for 5½" action figure toy dolls. Mattel did not demonstrate, however, that Remco was trading on Mattel’s success in any illegal way. Having failed to satisfy either prong of the preliminary injunction standard, Jackson Dairy, 596 F.2d at 72, Mattel was correctly denied the relief it requested.
Judgment affirmed.
. This was not always the case, as then District Judge Feinberg pointed out in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670, 682 & n. 87 (S.D.N.Y.1963).
. The fact that Mattel spent a great deal of money advertising its product, especially when coupled with commercial success, can also be a factor in determining whether the trademark has developed a secondary meaning. 3 R. Call-man, The Law of Unfair Competition, Trademarks and Monopolies § 77.3 at 349 (3d ed.1969), cited in Time Mechanisms, Inc. v. Qonaar Corp., 422 F.Supp. 905, 912 (D.N.J.1976). However, proof of an expensive and successful advertising campaign in itself is of course not enough to prove secondary meaning. American Footwear Corp., 609 F.2d at 663.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
LILES v. PEISER et al.
No. 10776.
United States Court of Appeals Sixth Circuit.
April 11, 1949.
W. Wright Mitchell, of Memphis, Tenn. (Robert M. Nelson and W. Wright Mitchell, both of Memphis, Tenn., on the brief), for appellant.
Charles M. Crump, Marx J. Borod and David Ballon, all of Memphis, Tenn. (Charles M. Crump, Rosenfield & Borod and David Ballon, all of Memphis, Tenn., on the brief), for appellees.
Before HICKS, Chief Judge, and MARTIN and MILLER, Circuit Judges.
MARTIN, Circuit Judge.
The Referee in Bankruptcy disallowed thé petition of appellant, doing business as Liles Electric Company, for reclamation of certain machinery, material and equipment, and for the enforcement of liens for labor and materials supplied the bankrupt Independent Tool and Machinery Co. The claim of appellant was reduced $1,377.37 by the Referee and allowed as an unsecured claim in the amount of $9,962.82.
The Referee filed no separate findings of fact and conclusions of law. He denied the petition of appellant by an order in which inadequate statements of fact were intertwined with the bare announcement of legal conclusions. He wrote no elucidating opinion and cited no interpretative decisions of the Tennessee courts, or any other authorities, but merely quoted in part section 7913 of the Tennessee Code. The District Judge confirmed the mixed findings and conclusions contained in the order of the Referee, denied petitioner’s prayer for review, and dismissed the petition.
The Independent Tool and Machinery Company (the bankrupt) conducted a manufacturing business at two leased locations in Memphis, Tennessee. One location, the Ragsdale property, with three buildings thereon, was at 814 Scott Street and was known as Plant No. 1. From December 31, 1946, to February 25, 1947, the date of bankruptcy, Independent had no lease in writing on the Ragsdale premises. The other premises, the Klyce property at 921 Rayner Street, leased by Independent consisted of two buildings. The first, known as Plant No. 2, was occupied by Independent under demise in writing dated April 1, 1946, and extending into 1951. A right of re-entry by lessor in event of lessee’s bankruptcy was reserved in this lease. The other building at 921 Rayner Street, known as Plant No. 3, was occupied by the bankrupt as sub-tenant of the American Plating Works under a month-to-month tenancy.
By agreements with the owners of' the ■leased premises, Independent was privileged to remove all electric wiring, switches, transformers, and the like, which it had placed on the property. The machinery installed and used by Independent on the leased premises belonged to it. Upon being notified by the City Inspection Department in December, 1945, that its plant on Scott Street was inadequate and would have to be rewired and put in shape, Inde-, pendent orally contracted with appellant to do the necessary work to that end. Liles, began performance forthwith. Also, he contracted orally to do certain work for Independent at its plants on Rayner Street. All contracts between Independent and Liles were oral except an ante-dated alleged conditional sales agreement and contract, to be hereinafter discussed.
The work on the No. 3 Plant on Rayner Street consisted in rewiring machines which had been moved there from the plant on Scott Street. This work was completed before December 6, 1946. On December 13th of that year, Independent paid Liles in full for all labor and materials furnished by him up to December 6, 1946. Liles continued his work at the Scott Street plant until two days before Independent’s voluntary bankruptcy. Work of no consequence was done by Liles in Plant No. 2 on the Klyce property.
Independent had executed a $100,000 promissory note, dated January 9, 1946, payable to the Union Planters National Bank and secured by chattel trust deed on its machinery and equipment. This note and security were later assigned to Arnold and Walter Klyce. The bankrupt being indebted to them in an amount in excess of $95,000, the Referee in Bankruptcy confirmed on April 21, 1947, a public sale to the Klyces of the dies, jigs and fixtures-located in Plant No. 1, certain machinery and equipment at Plant No. 3 listed on the trustee’s inventory, and the machinery and equipment in Plant No. 1, with the exception of certain items listed on that inventory. The consideration recited, in the Referee’s order was $95,000; and it was provided therein that the purchasers should pay in cash to the trustee sums equal in amount to any liens against the property which should be finally proved and allowed in the bankruptcy cause.
On the same date, April 21, 1947, appellant filed a petition for reclamation and for enforcement of alleged liens for labor and materials. He averred that, on September 2, 1946, he had entered into a contract with the bankrupt- to furnish labor and material to rewire its plants; that the property at 814 Scott Street was owned by Mrs. Banks and Mrs. Ragsdale, and the property at 921 Rayner Street was owned by Mrs. Elise Klyce and Mrs. Mary Klyce; and that he was informed that the bankrupt was oc-' cupying these properties under a month-to-month oral lease. The petitioner alleged further that, by the same conditional sales contract dated September 2, 1946, preserved in the form of an attached memorandum letter, he retained title to the materials furnished by him to the bankrupt. He asserted; moreover, a lien by virtue of section 7914 of the official Code of Tennessee, hereinafter quoted.
After praying for service, for an answer by the trustee, and for a show cause order, he prayed for the right to enter upon the premises and reclaim and take possession of all materials theretofore furnished by him and used in the work performed on the contract, for the purpose of “advertising and selling same” under the “Tennessee Conditional Sales Statute [Code, § 7286 et seq.]”, the proceeds to be applied “in the reduction of the costs and purchase price of. said materials.” He prayed further for the declaration and enforcement of a lien against all machinery and equipment listed in attached exhibits. - - Most of the machinery and equipment described was included in, the aforementioned property sold at public auction to the Klyces. In an amended petition, filed in May, 1947, he prayed that, pursuant to sections 7920 and 7921 of the Code of Tennessee, he be granted the same relief asked for in the original petition.
On May 24, 1947, the Trustee in Bankruptcy filed exceptions to appellant’s petition for. reclamation and for enforcement of his alleged lien. The trustee denied’ that the alleged contract of September 2, 1946, was a valid conditional sales contract; and averred that the document was not actually executed until within ten days prior to the filing of the petition in bankruptcy, that the purported contract was prepared, executed and ante-dated in a fraudulent effort by appellant to claim retention of title to materials already furnished, and that “the purported contract is invalid insofar as. it purports to retain title to materials furnished as security for labor and services performed.” The contract was further attacked as invalid in failing to describe accurately the property to which title is stated to be retained. The exceptions of the trustee, moreover, denied that appellant is entitled to a lien by virtue of section 7914 of the Code of Tennessee, or any other statute, or by virtue of the common law.
Upon the hearing before the Referee, Clement, president of the company, testified that the letter claimed to be a conditional sales contract' was executed, not upon the date appearing on its face — September 2, 1946 — but was in fact executed, to, the best of his recollection,' on February IS, 1947. The appellant admitted that the letter was ante-dated, and did not deny that it was executed shortly before the bankruptcy. The letter in question reads, as follows: “Mr. J. W. Clement: We propose to furnish the labor and materials to rewire plant located at 814 Scott Avenue, also No. 3 building, and Plant No. 2, located at 921 Rayner, as follows: Labor at rate of, electricians, three dollars per hour, helper, one dollar and a half; material, at the rate of cost plus forty per cent;- all wiring materials, including wire conduit, switches, motor controls and transformers, to remain the property of the Liles Electric Company until the work is completed, and fully paid for.” The letter was signed, ■“Liles Electric Company Glenn ■ Liles (Owner.)”; and was undersigned: “Accepted by Independent Tool and Machine Company. J. W. Clement, president.”
There can be no doubt that the Referee, confirmed by the District Judge, was correct in holding this ante-dated letter invalid as a conditional sales contract. Indeed, appellant does not press upon us that this was erroneous; but bases his appeal upon alleged error in the refusal of the District Court to apply in his behalf the mechanics’ and furnishers’ lien laws of Tennessee as he construes them.
.Ill his original petition, appellant based his right to a lien upon section 7914 of the official'Code of Tennessee, which provides: “There shall be a lien upon any lot of ground or tract of land upon which a house .or structure has been erected, demolished, altered, or repaired, or for fixtures or ma'chinery furnished or erected, or improvements made, by special contract with the owner or his agent, in favor of the contractor, mechanic, laborer, founder or machinist, who does the work or any part of the work, or furnishes the materials or any part of the materials, or puts thereon any fixtures,, machinery, or material, and in favor of all persons who do any portion of the work or furnish any portion of the materials for such building.” It should be noted that, in the preceding section, 7913, of the Tennessee Code, the word “owner” is thus defined: “ ‘Owner’ includes the owner in fee of real property, or of a less estate therein, a lessee for a term of years, a vendee in possession under a contract for the purchase of real property, and any person having any right, title or interest, legal or equitable, in real property, which may be sold under process.”
The appellant contends that machines, such as heavy transformers, switches, conduits, bolted down and installed, and wiring installed, “in leased property by a tenant,” are “chattels real and therefore an interest in real property within the meaning of Sections 7913, 7914, 7916 and 7917 of the Tennessee Code” and are under such statutes subject to “mechanics lien for labor performed thereon and material added thereto at tenant’s request.” •
The main authority upon which appellant depends is Burr v. Graves, 72 Tenn. 552, decided by the state Supreme Court in 1880. In that case, the complainants, who had erected a cotton-cleaning plant for a lessee upon land in lessee’s possession under an oral lease, filed their bill in chancery fifteen days before the expiration of one year of lessee’s term to enforce a mechanics’ lien “on the leasehold interest, building, machinery, and fixtures.” In affirming a decree of the chancellor in favor of complainants, the Supreme Court of Tennessee said, inter alia: “The complainants were, under the original contract, entitled to a lien as mechanics for the debt thereby created, on the leasehold interest in the land, the building, engines, machinery and fixtures furnished and erected, for twelve months from the completion of the work: Code, sec. 1981, [contained in sec. 7914 of the present Williams’ Code] ; Alley v. La-nier, 41 Tenn. 540. The lease, even if void as a letting for three years, because not in writing, was good for one year, and the bill was filed before the expiration of the year.”
It would seem from the. opinion that machinery was not regarded by the court as “fixtures”, and that the lien could be imposed upon the machinery only if considered to be an “improvement”. But, under section 7913 of the existing Code, which was not in existence in 1880, “improvement” is now defined as “any building, structure, erection, alteration, demolition, excavation, or any part thereof, including ornamental shrubbery, on real property for its permanent benefit.” [Emphasis supplied.] Upon the facts of the instant case, the movable machinery could not be deemed a “permanent benefit”.
When Burr v. Graves was decided, although the law in Tennessee was that a leasehold interest is subject to mechanics’ lien, (Alley & Bush v. Lanier, 41 Tenn. 540), the qualification to the rule had not been expressed, which now is found in section 7913, that the leasehold must be “for a term of years”, or one “which may be sold under process”. Construing Burr v. Graves most favorably to appellant’s position, that authority does not now support the argument that mechanics’ or furnishers’ liens embrace trade fixtures owned by lessee, situated upon property in possession of lessee under a month-to-month tenancy.
It is true that, in Steger, Assignees, v. Arctic Refrigerating Company, 89 Tenn. 453, 14 S.W. 1087, 11 L.R.A. 580, cited by appellant, the court quotes with approval the language of Judge Cooper in Burr v. Graves, supra, that the “lien is favored by the Legislature, and should not be hazarded by dangerous niceties in its enforcement”; and reaffirms the doctrine that liens created for the benefit of those who have furnished labor or material for the erection of buildings or machinery should be liberally construed in favor of the lienor. Liberal construction, however, should not be over-strained. The highest Tennessee court has said: “The liberal construction spoken of in our cases refers to the subject-matter, that is, the property to which the lien attaches and against which it may be enforced; the rule is not applied to draw in those excluded from the benefit of the statute. Thompson v. Baxter, 92 Tenn. [305], 307, 21 S.W. 668, 36 Am.St.Rep. 85;, [Chickasaw] Hotel Company v. [C. B. Barker] Construction Co., 135 Tenn. 305, 186 S.W. 115, L.R.A.1916F, 106. The Court cannot extend the benefit of the Statute to either persons or objects not embraced in its terms, and in determining the breadth and scope of the Act we must be guided by both the words and context.” Pillow v. Kelly, 155 Tenn. 597, 599, 296. S.W. 11, 12.
In Tuec Co. v. McKnight & Merz, 140 Tenn. 67, 69, 203 S.W. 238, holding a theater’s vacuum cleaning installation to be subject to mechanics’ lien, parts of the mechanism were permanently attached to the building and other parts were not but were loose and removable. The entire vacuum cleaning installation was held subject to the lien, it being “perfectly plain that a. vacuum cleaner, under modern conditions, is material used in the construction of the theater.” Halley v. Alloway, 78 Tenn. 523, was cited by the court as authority. In both the Steger case, supra, and the Tuec case, the improvements upon which the liens were held enforceable became a permanent part of the buildings in which they were placed. In the case at bar, the machinery upon which the lien is sought was not permanently attached to the building and was removable by the lessee at will. In Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 265, 86 S.W. 310, 312, the Tennessee court thus quoted from its earlier opinion in Johnson v. Patterson, 81 Tenn. 626: “Modern authorities all agree that the most controlling test of the question whether property connected with real estate is to be deemed realty or a mere chattel, removable at the pleasure of the owner, is the intention and purpose of the erection.” In Hickman v. Booth, 131 Tenn. 32, 34, 173 S.W. 438, Mr. Justice (later Chief Justice) Green said: “In Tennessee only those chattels are fixtures which are so attached to the freehold that, from the intention of the parties and the uses to which they are put, they are presumed to be permanently annexed, or a removal thereof would cause serious injury to the freehold. {Citing authorities.] The usual test is said to be the intention with which a chattel is connected with realty. If it is intended to be removable at the pleasure of the owner, it is not a fixture.” Cf. Blue v. Gunn, 114 Tenn. 414, 425, 87 S.W. 408, 69 L.R.A. 892, 108 Am.St.Rep. 912, 4 Ann.Cas. 1157. By this test, the machinery involved in this case was certainly not a fixture.
The old case of Grewar v. Alloway, 3 Cooper Tenn.Ch. 584, adds no force to appellant’s argument. There, the issue was between the owner of a theater and the mechanic who had installed therein chairs, balusters, railings, rollers and pulleys for shifting scenery, and the like. The articles furnished were for permanent use in the building. The court used the following language to distinguish such a- case from one which involved trade fixtures owned by a lessee: “Such fixtures, like other trade fixtures, are, as between landlord and tenant, removable by the tenant, but, as between the owner and the mechanic, are subject to the mechanic’s lien law.” [Emphasis supplied.]
The following cases cited by appellee bear some weight against the contention of appellant; but, in our view of the case, are not crucial. Hart v. Appalachian Washed Coal Co., 139 Tenn. 204, 201 S.W. 515; Degraffenreid v. Scruggs, 23 Tenn. 451, 40 Am.Dec. 658; Allen v. Brown, 14 Tenn. App. 405, 408.
Of all the Tennessee decisions which have been considered, we find Truxall & Dummeyer v. Williams & McCallie, 83 Tenn. 427, 428, most apposite. In that case, a mechanic, employed by the owner of a portable engine, boiler and appurtenances to take the same from one place and erect them temporarily upon the land of another, was held not to be entitled under the then existing statutes of Tennessee to a lien, either upon the land or upon the machinery. In denying the right of the mechanic to a lien, the Supreme Court said : “But here is no ownership of a term, or any interest in the land whatever, to be subjected to complainant’s claim, but only a permission to occupy with portable machinery another’s land for the purpose of sawing his timber. The party owning the machinery could remove it at any time he chose. It is not a fixture erected by the owner for the beneficial use of his own land, as contemplated in the first section of the statute. It is only the temporary occupation of a party’s land by the personal property of the owner, the property having no permanent connection whatever with his freehold. The only legal question is, then, whether a mechanics’ lien exists on mere personalty, as such, of another while being temporarily used on a third party’s land, by the permission of the land owner. The statute has not given such a lien, and we are not authorized to say it exists.”
In the present controversy, likewise, we find that the statute has given no such lien as is claimed by appellant. There is no material difference between section 7914 and the operative Code section 2745 with which the Tennessee court was -concerned in the Truxpd case, supra. It is true that, in that case, there had been no lease 'of any kind, but merely a temporary permissive right to put and operate a mill and machinery on land for the phrpose of sawing timber, the owner of the land to receive one-half of the timber sawed; while, in the present case, the bankrupt was in possession of the property under a month-to-month tenancy. Inasmuch as this was not a lease for a term of years nor an interese which could be sold under process, the factual difference in the two cases does not distinguish them. The complainant here is not seeking a lien against a leasehold estate, but rather, as in the Truxall case, against machinery temporarily placed upon the leasehold.
In view of our conclusion that appellant has not established a valid lien under Tennessee law, it is unnecessary to discuss his secondary argument that the Tennessee mechanics’ and furnishers’ lien statutes give him priority over the lien of the chattel trust deed involved herein.
One issue remains. The District Judge sustained the Referee in Bankruptcy in reducing the unsecured claim of appellant by the sum of $1,377.37, constituting overtime improperly included in the claim. It was held that the cost of labor to be charged against the bankrupt in its cost plus contract with appellant had been' definitely fixed and was evidenced in writing by the contract letter of February 15, 1947, antedated September 2, 1946. The rate therein provided was three dollars per hour for electricians and one-dollar-and-a-half per hour for helpers. Appellant insists that it was erroneously refused the right to prove that union employees receive extra compensation for work in excess of forty hours in a single workweek and receive, also, extra compensation for work performed on Saturdays, Sundays and at night. Appellant refers to Faulkner v. Ramsey, 178 Tenn. 370, 158 S.W.2d 710, and Earle v. Illinois Cent. R. Co., 25 Tenn.App. 660, 167 S.W.2d 15.
From our reading of the record and consideration of the evidence we find nothing substantial to justify a conclusion that Independent liad knowledge that appellant was paying over-time to employees in excess of the contract rate and charging such payments to it. In the absence of such proof, we are of opinion that the specified contract for labor was binding on the parties ; and that it was - not erroneous to refuse to receive the proffered evidence as to custom. In Sweeney v. Thomason, 77 Tenn. 359, 363, 364, 42 Am.Rep. 676, the Tennessee court found no reason for holding, in relation to a contract for the supplying of brick, that the purchaser had agreed to pay anything more than was expressed in the plain' language of the contract, or that he understood the contract “to mean anything'different from the plain and natural import of the language.” We think that in the instant case, likewise, there should be no departure from the agreement evidenced in writing.
The order of the District Court from which this appeal was taken is affirmed.
“Section 7913. Definitions.— [Blaterial excerpts.] ‘Improvement’ means any building, structure, erection, alteration, demolition, excavation, or any part there of, including ornamental shrubbery, on real property for its permanent benefit. * * * [“Owner” as defined in this section has been quoted heretofore in the body of this opinion.] * * * ‘Real property’ includes real estate, lands, tenements and hereditaments, corporeal and incorporeal, and fixtures.”
Section 7914. [Heretofore .quoted in full in body of opinion.]
“Section 7916. Extent of liens.- — Sucb lien shall extend to, and only to, the owner’s right, title or interest in the real property and improvements, existing at the time of the visible commencement of operation or thereafter acquired. If any part of the real property or improvements subject to such lien be removed by the owner or any other person at any time before discharge thereof, such removal shall not affect the rights of the lienor either in respect of the real property and improvements, or the part so removed.”
“Section 7917. Comprehension and duration of lien. — The lien shall include the building, structure, fixture, or improvement as well as the lot or land, and continue for one year after the work is finished or materials are furnished, and until the final decision of any suit that may be brought within that time for its en- . forcement.”
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES v. BRAWER.
No. 10884.
United States Court of Appeals Third Circuit.
Sept. 22, 1953.
Alford Brawer, pro se.
Grover C. Richman, Jr., Newark, N. J., and John R. Everitt, South Amboy, N. J., for appellee.
Before MARIS, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
This memorandum subsequent is explanatory of this court’s order entered on July 28, 1953 denying rehearing after we had affirmed petitioner’s conviction of a crime against the United States. We make this explanation because a communication from the petitioner, now a prisoner without counsel, reveals a misunderstanding of the factual and legal situation with which this court was confronted in connection with one matter of which he complains.
On his appeal Brawer urged that one of the jurors who tried him was biased, that circumstances indicating bias were brought to the attention of the trial judge and that no sufficient corrective action was taken. We disposed of this contention by saying that we were able to find nothing about any such occurrences in the record. But in seeking rehearing, appellant urged that he had reasonably relied upon this court to discover and review all that happened in the District Court relevant to any error alleged by him.
Actually this court in connection with this appeal ordered up the entire record of the proceedings in the District Court. We decided the appeal upon what was authoritatively certified to us as the complete record. Orderly procedure dictates that we thus restrict our review to the record.
If appellant has a continuing complaint that something prejudicial occurred during the course of his trial but was not recorded, then he must in some appropriate manner prove what happened. Procedurally this can be done in the District Court by filing a motion challenging the validity of his conviction and sentence as authorized by Section 2255 of Title 28 of the United States Code and by offering proof of any matters not of record properly alleged in support of such a motion. Such proof and the findings of the District Court predicated thereon would be reviewable in this court. Thus, if the appellant believes that any of his fundamental rights have been violated in the matter of the juror, there is a way open to him to establish the facts and to have his complaint adjudicated and reviewed upon the established facts.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_appel1_1_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
TOWN PARK HOTEL CORPORATION, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 71-1055.
United States Court of Appeals, Sixth Circuit.
Aug. 10, 1971.
Wayne C. Marsh, Memphis, Tenn., for petitioner-appellant; Charles M. Collins, Memphis, Tenn., on brief.
Jane Edmisten, Atty., Tax. Div., Dept. of Justice, Washington, D. C., for respondent-appellee; Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwacks and Thomas L. Stapleton, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief.
Before BROOKS, MILLER and KENT, Circuit Judges.
PER CURIAM.
The issue on appeal and before the Tax Court is whether the appellant realized a gain when it withdrew in 1964 a deposit which had been made by the state of Tennessee in a condemnation proceeding in Tennessee State court involving a taking of the plaintiff’s property. The amount deposited by the state and withdrawn by the taxpayer in the year 1964 was the sum of $722,476.00. The Commissioner determined a deficiency in the taxpayer’s federal income tax for the fiscal year ended June 30, 1965 in the amount of $112,223.74. He determined that the taxpayer had not reinvested the proceeds received on the condemnation of its property within the time limit as prescribed by section 1033(a)(3)(B) (i), I.R.C.1954, and therefore that the taxpayer was not entitled to treat the gain thereon as one entitled to nonrecognition treatment. The nonrecognition feature of section 1033(a)(3)(B) in effect at the time here involved was that any taxpayer whose property is involuntarily converted may limit the recognition for tax purposes of any gain realized by such conversion if he replaces such property with other property similar or related in use within a period of one year “after the close of the first taxable year in which any part of the gain upon the conversion is realized.”
In this ease it is conceded that the taxpayer did not reinvest the proceeds derived from the withdrawal of the condemnation deposit within the one-year period. Its insistence is that the gain was not realized during the year that the deposit was withdrawn but was realized when the amount of compensation that it was to receive as a result of the condemnation was finally determined in a later year in the condemnation proceeding and title to the property was vested by the court in the condemning authority.
In upholding the findings and conclusions of the Commissioner, the Tax Court applied the “claim of right” doctrine first enunciated by the Supreme Court in North American Oil Consolidated v. Burnet, 286 U.S. 417, 424, 52 S.Ct. 613, 615, 76 L.Ed. 1197 (1932). In that case the doctrine was stated by Mr. Justice Brandeis as follows:
If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.
The Tax Court analyzed the condemnation procedure in Tennessee (Tenn.Code Ann. [1969 Cum.Supp.] Sections 23-1526 through 23-1541), and was of the opinion that when a deposit is made by the condemning authority under the Tennessee procedure the taxpayer upon withdrawing the deposit obtained the unrestricted use of the funds under a claim of right. The Court was of the view that when the deposit was made in the present taxpayer’s case and an order of condemnation entered, the property was thereby appropriated to the use of the state and what remained in the taxpayer was the bare legal title to the property.
Having reviewed the record and the applicable authorities, we are of the opinion that the Tax Court was correct in applying the claim of right doctrine as enunciated in North American Oil Consolidated v. Burnet, swpra. It follows that it was correct in its ultimate determination and finding that the taxpayer was not entitled to the benefit of the nonrecognition provisions of the Act in effect during the times here involved.
It is therefore ordered and adjudged that the decision of the Tax Court entered on September 14, 1970 be and the same is hereby affirmed on the basis of its memorandum opinion as reported in 29 T.C.M. 1150.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Emmeline LEWIS, for herself, all teachers employed in the San Jacinto Junior College, Harris County, Texas, etc., Plaintiff-Appellant, v. Thomas M. SPENCER, Individually and in his official capacity as President of the San Jacinto Junior College, Harris County, Texas, etc., et al., Defendants-Appellees.
No. 73-2992
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 20, 1974.
Larry Watts, Houston, Tex., for plaintiff-appellant.
B. Jeff Crane, Jr., Houston, Tex., for defendants-appellees.
Before BELL, SIMPSON and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
PER CURIAM:
Following the remand directed by our opinion in the former appeal of this matter, Lewis v. Spencer et al., 5 Cir. 1972, 468 F.2d 553, the district court held an evidentiary hearing and entered its opinion order finding adversely to the plaintiff-appellant’s contentions as to the factual issues directed to be fried by our remand. Those issues were (1) whether or not the action of the Board of Regents of San Jacinto Junior College in not renewing Ms. Lewis’ teaching contract was taken in retaliation for her exercise of First Amendment rights and her rights of freedom of association; and (2) whether the adoption of the policy without a recognition therein of plaintiff and her husband’s unique situation (viz, recently married and the only couple in the school to whom the policy was applicable) through such a device as a grandfather clause or prospective application, would make impermissible as applied an otherwise constitutionally valid policy.
The trial court’s hearing fully ventilated these issues and his findings of fact settled them, unless we determine that his findings were “clearly erroneous”. Rule 52(a), F.R.Civ.P.; United States v. National Association of Real Estate Boards, 1950, 339 U.S. 485, 495-496, 70 S.Ct. 711, 94 L.Ed. 1007. The task of demonstrating that the findings of a trial court are “clearly erroneous” is a heavy burden indeed. We are satisfied that the plaintiff-appellant has not met that burden on this appeal. Our view is rather that the trial court’s findings were required by the evidence presented, to the extent that we would seriously consider assigning a “clearly erroneous” label if contrary findings had been reached.
Affirmed.
. Reported as Lewis v. Spencer et al., S.D. Texas, 1973, - F.Supp. - decided June 6, 1973.
. Under a Board of Regents policy adopted in March of 1969 requiring that a husband and wife, both teachers, not teach in the same department.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES v. W. T. RAWLEIGH CO.
No. 546.
Circuit Court of Appeals, Tenth Circuit.
March 31, 1932.
Ralph L. Carr, U. S. Atty., and Charles 3E. Works, Asst. U. S. Atty., both of Denver, Colo., for appellant.
Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.
KENNEDY, District Judge.
This is a libel suit brought under the Food and Drugs Act, 21 USCA §§ 1 to 26 (.Act of Juno 30, M06, 34 Stats. 768). The libel was directed against certain misbranded drugs found in the possession of the appel-lee. An answer was filed in which various exceptions to the libel were set forth hv the appellee in the court below, among which was the following: “Because it does not appear in and from the averments contained in the said Libel that a notice and preliminary hearing by the Department of Agri-cnllure was afforded the claimant prior to-the institution of Ihe libel, pursuant to law in such cases made and provided.”
At the hearing the court sustained said exception, overruled all others, and entered an order dismissing the libel and for a return of the property seized under the warrant. From such order of the District Court the government appeals.
Section 2 of title 21 prohibits the introduction of food or drugs in interstate commerce which are adulterated or misbranded within the scope of tho act. Section 14 provides for tho seizure of such specified food or drugs. Section 11 provides for the examination of specimens of food and drugs in the Bureau of Chemistry for the purpose of determining whether such articles are adulterated or misbranded, and that the Secretary of Agriculture shall give notice to tho party from whom the sample was obtained in the event it is found that there is adulteration or misbranding; and further provides that any parties so notified shall be given an opportunity to be heard, upon which, if it appear that any of the provisions of the act have -been violated by such party, then the Secretary of Agriculture shall certify the facts to the proper United States district attorney for appropriate action in the premises. Section 12 provides that it shall he the duty of each district attorney to whom the Secretary of Agriculture shall report any violation, or to whom any health or food or drug officer or agent of any state, territory, or tho District of Columbia shall present satisfactory evidence of such violation, to cause appropriate proceedings to be commenced and prosecuted for the enforcement of the penalties in such case provided. Section 2 also provides that any one violating the act shall be guilty of a misdemeanor and subjected to certain fines or imprisonment; and section 14 contemplates proceeding against tho offending articles through libel.
It does not appear- from the record in this caso as to how the possession or knowledge of the specimens of alleged misbranded drugs came to the District Attorney upon which the libel is based.
By the order of the trial court sustaining the exception of the appellee upon the ground that no notice had been given or opportunity to be beard under the provisions of section 11 as heretofore referred to, it was held that the libel could not be sustained, which raises the question as to whether or not such notice is necessary from a, jurisdictional standpoint, ■and this is the sole point presented upon this appeal.
It appears that there had been a diversity of opinion upon this point among the District Courts and Circuit Courts of Appeals. The matter came to the attention of the Su* preme Court in the ease of United States v. Morgan, 222 U. S. 274, 32 S. Ct. 81, 56 L. Ed. 198, where some of the cases of the lower courts involving conflict of opinion are eited. In the Morgan Case the high court affirmatively holds that the notice indicated in section 11 is not jurisdictional. The gist of the decision is to the effect that, because under section 12 it is made the duty of the district attorney to institute appropriate proceedings for the enforcement of the penalties prescribed by the act when reports are made to him by the Secretary of Agriculture or by any health, food, or drug officer in any state or territory, which latter reports would manifestly not come through the Secretary of Agriculture, it should not be held that it was the intent of Congress that he should only prosecute where notice had been given in the event that the report had come from the Secretary of Agriculture, but could prosecute without notice where the report had come from the other sources indicated, and that for the reasons stated the preliminary notice could not be held as being a necessary preliminary step to prosecutions for violations of the act ejther by indictment or by libel. Additional reasons are indicated in the opinion which it will not be necessary here to further set forth. The proceeding in the eited ease was in the nature of a criminal prosecution by indictment, while in the case at bar it is by libel, yet we see no distinction to be made in the rule by virtue of these circumstances. We are of the opinion that this decision of the Supreme Court rules this case.
For the reasons stated, the order of the trial court will be reversed, and the case remanded for appropriate action not inconsistent with this opinion, and it will be so ordered.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_respond1_5_3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Your task is to determine which specific state government agency best describes this litigant.
STATE OF NEW MEXICO, Plaintiff-Appellee, v. Donald T. REGAN, etc., Defendant-Appellant.
No. 83-1981.
United States Court of Appeals, Tenth Circuit.
Oct. 9, 1984.
Paul G. Bardacke, Atty. Gen. of the State of New Mexico (Charlotte Uram, Asst. Atty. Gen., Santa Fe, N.M., Norman S. Thayer and Ronald Segel of Sutin, Thayer & Browne, Albuquerque, N.M., with him on the briefs), for plaintiff-appellee.
John J. McCarthy, Dept, of Justice, Washington, D.C. (Glenn L. Archer, Jr., Asst. Atty. Gen., Michael I. Paup, Ernest J. Brown, David English Carmack, Washington, D.C., with him on the briefs), for defendant-appellant.
Before HOLLOWAY, SETH and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
This case involves the interplay of two federal statutes, the Mineral Lands Leasing Act of 1920, 30 U.S.C. §§ 181 et seq., and the Crude Oil Windfall Profits Tax Act of 1980, 26 I.R.C. §§ 4986 et seq. The Mineral Lands Leasing Act (Mineral Act) directs the Secretary of the Treasury to pay fifty percent (50%) of all mineral royalties received from federal lands to the states in which the leased federal lands are located. Pursuant to the Crude Oil Windfall Profits Tax Act (COWPTA), however, these same federal royalties are subject to a federal tax. The question is thus raised whether the United States should impose the windfall profits tax on federal royalties before or after it computes the 50% share of the royalties owed to the states.
Donald T. Regan, Secretary of the Treasury of the United States, has taken the position that the states’ shares must be calculated after deducting the windfall profits tax, and has in fact calculated the states’ shares by this method since the passage of COWPTA in 1980. Taking the contrary position, the State of New Mexico brought the present action against Regan in 1981 claiming that the Mineral Act requires payment to the states of 50% of federal royalties undiluted by the windfall profits tax. New Mexico consequently sought to recover 50% of the federal royalties used to pay the windfall profits tax, together with interest, an accounting, declaratory relief, and its attorney fees. The district court granted New Mexico’s motion for summary judgment, awarding completely the state’s requested relief.
Secretary Regan appeals from this decision, asserting that the court’s position is contrary to the intent of Congress in passing COWPTA and the Mineral Act. In addition, he argues that even if the court properly construed the applicable statutes, it erred in awarding the states prejudgment interest on the royalties withheld. Finally, Secretary Regan contends that because this is a suit against the United States to which it has not consented, the district court lacked jurisdiction to entertain New Mexico’s suit. We will begin with an analysis of the jurisdictional issue.
The District Court’s Jurisdiction
It is unclear from the district court’s opinion whether it considered New Mexico’s suit to be an action against the United States. The court did hold, however, that if such were the case the district court nonetheless possessed jurisdiction by virtue of 28 U.S.C. § 1331, 5 U.S.C. §§ 701 et seq. (the Administrative Procedure Act), 28 U.S.C. § 1361 (federal mandamus), and 28 U.S.C. § 2201 (declaratory judgment). According to the court, these statutes granted the United States’ consent to suit in the district court.
As an initial matter, we hold that New Mexico’s suit is indeed an action against the United States. Although Secretary Regan is the nominal defendant in the suit, sovereign immunity is determined not by the party named as the defendant, but by the issues presented and the effect of the judgment. Transwestern Pipeline Co. v. Kerr-McGee Corp., 492 F.2d 878, 884 (10th Cir.1974) cert, dismissed 419 U.S. 1097, 95 S.Ct. 691, 42 L.Ed.2d 689 (1975). If the relief sought against a federal officer in fact operates against the sovereign, then the action must be deemed as one against the sovereign. Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1052-53, 10 L.Ed.2d 191 (1963).
New Mexico correctly points out that an exception to this general rule is recognized when a suit is brought against a governmental official challenging his or her ultra vires actions. See Larson v. Domestic & Foreign Corp., 337 U.S. 682, 689, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949). Assuming arguendo that this exception could be properly invoked in the present case, the Supreme Court has rejected its application when “the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.” Id. at 691 n. 11, 69 S.Ct. at 1462 n. 11 (citing North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849 (1890)). See also Hawaii v. Gordon, supra. The relief sought by New Mexico would, in our view, require affirmative action by the sovereign or the disposition of sovereign property. New Mexico seeks to change in a significant manner the Secretary’s methods of calculating the windfall tax and state royalties; this change would clearly reduce amounts already collected in the Treasury pursuant to the windfall profits tax and require the payment of substantial sums to New Mexico. Thus, as a practical matter, the “essential nature and effect of the proceeding” is such “that the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947). See also Du-gan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Mine Safety Co. v. Forrestal, 326 U.S. 371, 375, 66 S.Ct. 219, 221, 90 L.Ed. 140 (1945).
Having concluded that New Mexico’s suit is directed against the United States, we must determine whether the United States has consented to such suits in federal district court. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). The district court, as has been mentioned, based its finding of jurisdiction upon 28 U.S.C. § 1331, and the waivers of sovereign immunity found in 5 U.S.C. § 702 (the Administrative Procedures Act), and 28 U.S.C. §§ 1361, 2201 (federal mandamus and declaratory judgment). While 28 U.S.C. § 1331 grants to the district court broad subject matter jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, that section does not include a general waiver of sovereign immunity by the United States. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724 (2d Cir.1983). We must therefore look elsewhere in order to examine the extent to which the United States has consented to suit in district court.
Section 702 of the Administrative Procedure Act contains a limited waiver of the United States’ sovereign immunity. That section reads in pertinent part:
A person suffering legal wrong because of agency action ... is entitled to judicial review thereof. An action ... seeking relief other than money damages ... shall not be dismissed ... on the ground that it is against the United States.
Thus, § 702 has been construed as granting the United States’ consent to suit in cases involving agency action, subject however, to the proviso that the action is not one for “money damages.”
New Mexico contends, and the district court held, that the present action is not one for “money damages” and that § 702 thus provides the necessary consent to suit. In reaching this conclusion, the district court reasoned as follows:
The State of New Mexico has requested the specific relief of one-half of those royalties received from crude oil production from federal lands within New Mexico which were used by the United States to pay the windfall profits tax. The fact that the requested relief is for specific monies held by the Treasury does not mean that the requested relief is for money damages. Damages are a sum of money used as substitutionary relief. Such relief is given to the plaintiff to substitute for a suffered loss which may not have been originally a monetary loss. Dobbs, Handbook of the Law of Remedies, 135, (1973). Specific relief, on the other hand, is an attempt to give back to the plaintiff that which he actually lost, not a sum measured by the amount of the loss, but the loss itself. Dobbs, at 135____ This action seeks specific, declaratory and mandamus relief.
New Mexico v. Donald T. Regan, No. 81-452-M Civil, at 6 (D.N.M. June 8, 1983).
We must conclude, however, that the district court failed to ascertain the intent of Congress by engaging in its semantic discussion of the meaning of the word “damages.” Section 702 expressly states: “Nothing herein ... confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” (Emphasis added.) The legislative history supporting § 702 states unequivocally that the provision is to be read in conjunction with other jurisdictional statutes waiving sovereign immunity, and, as an example, points out that the “Tucker Act impliedly forbids relief other than the remedy provided by [that] Act.” H.R. No. 94-1656, 94th Cong. 2d Sess. (1976), 5 U.S.Code Cong, and Admin.News, 6121, 6133. See also American Science & Engineering, Inc. v. Califano, 571 F.2d 58, 63 (1st Cir.1978).
The Tucker Act (codified at 28 U.S.C. §§ 1346, 1491) grants concurrent jurisdiction to the district court and the Claims Court (formerly the Court of Claims) over money claims against the United States not exceeding $10,000. For claims against the United States involving amounts greater than $10,000 founded upon the Constitution, Acts of Congress, executive regulations, or contracts, the Act vests exclusive jurisdiction with the Claims Court. Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 823 (10th Cir.1981); Laguna Hermosa Corp. v. Martin, 643 F.2d 1376, 1379 (9th Cir.1981); Chelsea Community Hospital v. Michigan Blue Cross, 630 F.2d 1131, 1136 (6th Cir.1980).
Several courts have noted that when the “prime objective” or “essential purpose” of the complaining party is to obtain money from the federal government (in an amount in excess of $10,000), the Claims Court’s exclusive jurisdiction is triggered. See Alamo Navajo School Board, Inc. v. Andrus 664 F.2d 229, 233 (10th Cir.1981) cert, denied, 456 U.S. 963, 102 S.Ct. 2041, 72 L.Ed.2d 487 (1982); B.K Instrument, Inc. v. United States, supra, 715 F.2d at 727; Bakersfield City Sch. Dist. of Kern Cty. v. Boyer, 610 F.2d 621, 628 (9th Cir.1979); Hoopa Valley Tribe v. United States, 596 F.2d 435-36 (Ct.Cl. 1979). Consequently, the Claims Court’s exclusive jurisdiction may not be avoided by framing a complaint in the district court as one seeking injunctive, declaratory, or mandatory relief when, in reality, the thrust of the suit is one seeking money from the United States. Amalgamated Sugar Co. v. Bergland, supra at 824; Chelsea Community Hospital v. Michigan Blue Cross, supra at 1136; Laguna Her-mosa Corp. v. Martin, supra at 1379; Hoopa Valley Tribe v. United States, supra at 436. Similarly, a plaintiff may not transform a claim for monetary relief into an equitable action simply by asking for an injunction that orders the payment of money. Jaffee v. United States, 592 F.2d 712, 715 (3d Cir.1979) cert, denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979).
The district court concluded that the Claims Court could not assert jurisdiction over New Mexico’s suit because of the “equitable relief” requested by the state. We disagree. New Mexico’s claim for past royalties and prejudgment interest is clearly founded upon provisions of an “Act of Congress” (the Mineral Act), and exceeds the $10,000 jurisdictional limit of the Tucker Act. New Mexico’s primary purpose is to fix the government’s and not the Secretary’s liability; accordingly, we must conclude that the suit is essentially one designed to reach money which the government owns. See Mine Safety Co. v. Forrestal, supra 326 U.S. at 375, 66 S.Ct. at 221. This, then, is a claim for money cognizable under the Act. New Mexico’s additional requests for an accounting and declaratory relief are merely incidental and subordinate to the basic suit for money. Although such has not always been the case, the Claims Court may now grant equitable relief as an incident to the award of money in the interest of affording complete justice to the parties. 28 U.S.C. § 1491(a)(3) (1976) (as amended by Pub.L. No. 97-164, 96 Stat. 25). See Ellis v. United States, 610 F.2d 760, 762 (Ct.C1.1979).
New Mexico argues that the federal mandamus and declaratory judgment statutes (28 U.S.C. §§ 1361, 2201) provide the district court with an alternative basis of jurisdiction. While this argument, standing alone, has merit, we believe that allowing the district court to entertain these equitable claims would be improper in the context of this case. Having concluded that New Mexico’s claim is primarily one for money over which the Claims Court possesses exclusive jurisdiction, it would not be in the interest of justice or public policy to allow the district court to determine New Mexico’s incidental equitable claims. It is settled that the declaratory judgment statute does not itself confer jurisdiction on a federal court where none otherwise exists. Amalgamated Sugar Co. v. Bergland, supra at 822. In addition, several courts have specifically concluded that mandamus is not available in the district court when relief can be granted in the Claims Court. See, e.g., American Science & Engineering, Inc. v. Califano, supra at 64; Carter v. Seamans, 411 F.2d 767, 774 (5th Cir.1969) cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970). This court has similarly noted the general principle that mandamus should not be invoked if adequate alternative relief is available at law. United States v. West, 672 F.2d 796, 799 (10th Cir.1982) cert, denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982). Finally, as we have previously noted, the Claims Court does not lose jurisdiction when equitable claims are asserted in conjunction with primary claims for money against the United States. Similarly, the district court should not gain jurisdiction over what is fundamentally a Tucker Act claim simply because the complaint contains requests for equitable relief. See Portsmouth Redevelopment & Housing Authority v. Pierce, 706 F.2d 471, 474 (4th Cir.1983) cert, denied, — U.S. —, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
We must conclude, therefore, that the trial court lacked jurisdiction to enter summary judgment in favor of New Mexico. We need not discuss the remaining issues raised by the appellant.
We direct that this case be transferred to the United States Claims Court for adjudication on the merits “in the interest of justice” rather than dismissing the suit. See Keller v. Merit Systems Protection Board, 679 F.2d 220, 223 (11th Cir.1982). Accord, Dr. John T. MacDonald Foundation v. Califano, 571 F.2d 328, 332 (5th Cir.1978) (en banc), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978).
The case is transferred to the United States Claims Court pursuant to 28 U.S.C. § 1631.
. In our view it is doubtful that Secretary Re-gan's method of computing the states’ royalties could be deemed ultra vires. New Mexico’s challenge does not accurately rest upon the Secretary’s lack of delegated power to determine the state’s royalty, but rather that the Secretary’s decision was incorrect as a matter of law. The Supreme Court has rejected such arguments asserted in the attempt to avoid the shield of sovereign immunity, and has held that actions of an officer within his statutory authority are the actions of the sovereign. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 693-95, 69 S.Ct. 1457, 1463-64, 93 L.Ed. 1628 (1949).
. In its complaint New Mexico noted that the Treasury had collected $3,255,000 in federal royalties from federal lands in New Mexico over a five-month period in 1980. Reducing the taxable royalties derived from public lands located in New Mexico by 50% for this five-month period alone would significantly decrease federal revenues, not to mention the dramatic national impact of such a change when considering its future application to all federal lands.
. We note that the legislative history behind § 702 supports a broader view of the term "damages" than that held by the district court. For example, House Report 94-1656 states:
The first of the additional sentences provides that claims challenging official action or non-action, and seeking relief other than money damages, should not be barred by sovereign immunity. The explicit exclusion of monetary relief makes it clear that sovereign immunity is abolished only in actions for specific relief (injunctions, declaratory judgment, mandatory relief, etc.).
H.R. No. 94-1656, 94th Cong. 2d Sess. (1976), 5 U.S.Code Cong, and Admin.News, 6121, 6131 (emphasis added).
There is nothing in the legislative history which supports the proposition that the use of the word "damages” was intended by Congress to exclude certain claims for money not falling within technical common law concepts of "damages.” Rather, the history supports the view that § 702 should be read with a practical eye, with the focus upon the effect of the claim— does it involve a claim for money, or does it seek only to effect action? It is solely the latter class of claims which fall within the consent to suit granted by § 702. A contrary view would seemingly run counter to the Tucker Act's express scheme for monetary claims against the United States (discussed infra in text at 1322).
. 28 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title [28 U.S.C. § 610] or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed or noticed for the court to which it is transferred on the date upon which it was actually filed or noticed for the court from which it is transferred.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Which specific state government agency best describes this litigant?
A. state of ___ - state in its corporate capacity in criminal cases
B. state 0f ___ - state in its corporate capacity in civil cases
C. other state level activity
D. not ascertained
Answer:
|
songer_casetyp2_geniss
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - business reorganization (e.g., chapter 11). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. The FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for MBank Houston, N.A. and The Deposit Insurance Bridge Bank, N.A., Intervenors-Appellees, v. Suzan E. TAYLOR, d/b/a Exploration Services, Defendant-Appellant.
Nos. 89-2328, 89-2373.
United States Court of Appeals, Fifth Circuit.
Aug. 28, 1989.
Hayden Burns, Houston, Tex., for defendant-appellant.
Robert D. Daniel, Preston T. Towber, Hirsch & Westheimer, Houston, Tex., for FDIC & DIBB.
Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., Margaret Hewing, Anthony J. Stein-meyer, U.S.D.J., Civ. Div., Federal Programs, Washington, D.C., for U.S.
Blake Tartt, Fulbright & Jaworski, Houston, Tex., for FDIC.
Jeff Joyce, Ann Ryan Robertson, Dallas, Tex., Blake Tartt, Tom Cunningham, Houston, Tex., for FDIC, Receiver and the Deposit Ins. Bridge Bank.
Before CLARK, Chief Judge, JOHNSON and SMITH, Circuit Judges.
CLARK, Chief Judge:
The United States of America filed this action on behalf of the Office of the Comptroller of the Currency (OCC). The United States brought the action to enjoin Susan E. Taylor d/b/a Exploration Services (Taylor) from filing an abstract of a state court judgment which would create a lien on property owned by MBank Houston, N.A. (MBank). The district court granted a preliminary injunction and ordered Taylor to release an abstract of judgment previously filed. We affirm.
I.
On February 27, 1989 Taylor obtained a $9.6 million judgment against MBank in a Texas state district court. The state court denied MBank’s requests for an order prohibiting Taylor from filing an abstract of the judgment. On March 1, 1989, prior to exhaustion of the appellate process, Taylor filed an abstract of the judgment with the Harris County Clerk. Under Texas law, the recorded abstract of judgment created a lien on all the real property of MBank located in Harris County, Texas. Tex. Prop.Code Ann. § 52.001 (Vernon 1984).
Also on March 1, 1989, the United States, on behalf of the OCC, filed this action in federal district court seeking a temporary restraining order and a preliminary injunction prohibiting Taylor from filing an abstract of judgment. The action was based on 12 U.S.C. § 91, which prohibits the issuance of an attachment, injunction, or execution against a national bank or its property prior to a final judgment. The district court signed a temporary restraining order, but not until nine minutes after Taylor had filed the abstract of her state court judgment.
On March 21, 1989, the district court granted a preliminary injunction and ordered Taylor to withdraw the abstract of judgment previously filed. In response to the order, Taylor filed a notice in the Harris County property records announcing involuntary withdrawal of the abstract of judgment subject to appeal. On April 18, 1989, the district court ordered Taylor to completely release the abstract of judgment or be held in contempt. Taylor appeals the preliminary injunction and the order requiring release of the abstract of judgment.
II.
Taylor initially argues that the United States lacks standing to bring this action because it has not pled a sufficient governmental interest at stake. However, by pleading and affidavit, the United States has asserted that the OCC has a supervisory and regulatory interest in enforcing the safeguards mandated by 12 U.S.C. § 91. This interest stems from the OCC’s obligation to ensure the safety and soundness of the national banking system for the benefit of depositors and the general public. See 12 U.S.C. § 1 et seq. The OCC’s interest provides sufficient standing for the United States to bring this action. United States v. Lemaire, 826 F.2d 387, 388 n. 1, 390 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1223, 99 L.Ed.2d 423 (1988).
Taylor next argues that 12 U.S.C. § 91 does not prohibit the filing of an abstract of judgment. Section 91 reads as follows:
All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court.
12 U.S.C. § 91.
Taylor does not argue that her judgment is final. Prior to conclusion of the appellate process it is not. Lemaire, 826 F.2d at 390. Rather, Taylor asserts that section 91 applies only to seizures of assets and not to the perfection of a judgment lien by recording an abstract of judgment. Taylor relies on the fact that the last clause of section 91 expressly prohibits only attachments, injunctions, or executions, but does not mention abstracts of judgment. However, under Texas law an abstract of judgment is functionally equivalent to an attachment in that “[e]ach fixes a lien upon the title of the debtor subject to execution; which lien, in either event, is foreclosed through sale under execution.” Stewart v. Rockdale State Bank, 52 S.W.2d 915, 916 (Tex.Civ.App.1932), aff'd, 124 Tex. 431, 79 S.W.2d 116 (1935). See Tex.Civ.Prac. & Rem.Code Ann. § 61.061 (Vernon 1986) (attachment); Tex.Prop.Code Ann. § 52.001 (Vernon 1984) (abstract of judgment). An abstract of judgment is also similar to an injunction in that the lien created by an abstract of judgment prohibits a national bank from freely transferring its property. Third National Bank in Nashville v. Impac Ltd., Inc., 432 U.S. 312, 97 S.Ct. 2307, 2314 n. 18, 53 L.Ed.2d 368 (1977).
Furthermore, the Supreme Court has ruled that section 91 is not to be given a completely literal meaning. See Impac Ltd., 97 S.Ct. at 2312. We have not limited section 91 to the prohibitions expressly mentioned and have construed the statute to prohibit garnishment of a national bank’s property prior to a final judgment. Lemaire, 826 F.2d 387. A non-restrictive reading of section 91 is necessary to effectuate the statutory purpose, which is to “prevent creditors from obtaining preferential treatment by court action, including the securing of a judgment at the trial court level.” Lemaire, 826 F.2d at 390. In this case, the district court correctly found that by filing an abstract of judgment and obtaining a lien on MBank’s property, Taylor would secure preferential treatment over the other general creditors of MBank. Such action prior to a final judgment would violate 12 U.S.C. § 91.
Taylor asserts that if she is not allowed to file an abstract of judgment, other creditors with liens against MBank’s property will obtain a preference over her claims. However, 12 U.S.C. § 91 does not prohibit all liens against the property of a national bank, only those obtained prior to a final judgment. Even if the other creditor’s liens acquire precedence, that would not justify Taylor’s attempt to obtain preferential treatment for her lien prior to a final judgment — a form of preference prohibited by section 91.
Taylor next argues that the district court erred in granting a preliminary injunction without balancing the competing claims of injury and considering the public interest. Generally, in order to secure a preliminary injunction, the movant must prove 1) a substantial likelihood of success on the merits; 2) a substantial threat of irreparable injury if the injunction is not issued; 3) the threatened injury to the mov-ant outweighs any damage the injunction might cause to the opponent; and 4) the injunction will not disserve the public interest. Enterprise Int’l v. Corporación Estatal Petrolera, 762 F.2d 464, 471 (5th Cir.1985). However, if a statutory violation is involved and the statute by necessary and inescapable inference requires in-junctive relief, the movant is not required to prove the injury and public interest factors. Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402-03, 94 L.Ed.2d 542 (1987); United States v. Hayes International Corp., 415 F.2d 1038, 1045 (5th Cir.1969). In this case the district court correctly concluded that the purpose of section 91 — to prevent a creditor from obtaining preferential treatment prior to a final judgment — requires injunctive relief once a statutory violation is shown. Accordingly, the district court did not err in granting the preliminary injunction without requiring specific proof on the injury and public interest factors.
Finally, Taylor argues that the district court erred in requiring Taylor to release her abstract of judgment. Taylor acknowledges that the district court has the equitable power to return the'parties to their last uncontested status. See Canal Authority v. Callaway, 489 F.2d 567, 576 (5th Cir.1974). Taylor argues, however, that the court erred in finding that the last uncontested status was the situation of the parties prior to the filing of Taylor’s abstract of judgment. The record shows that Taylor’s right to file an abstract of judgment was contested from the time the state court judgment was rendered. Taylor’s action in filing the abstract remains the core of the present controversy. The finding of the district court that the last uncontested status was prior to the act of filing is not clearly erroneous.
The district court’s judgment and order are
AFFIRMED.
. MBank was declared insolvent on March 28, 1989, and the Federal Deposit Insurance Corporation, as receiver for MBank, has intervened in this case in support of the United States.
Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - business reorganization (e.g., chapter 11)?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_injunct
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Gaylord OLSON, Defendant-Appellant.
No. 71-1617.
United States Court of Appeals, Ninth Circuit.
Sept. 13, 1971.
Gerard J. Glass, San Francisco, Cal., for defendant-appellant.
James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before KOELSCH and CHOY, Circuit Judges, and POWELL, District Judge.
Honorable Charles L. Powell, Chief Judge, United States District Court for the Eastern District of Washington, sitting by designation.
CHOY, Circuit Judge:
Lawrence Olson appeals his conviction for refusal to submit to induction. We affirm.
On October 11, 1966, Olson enrolled in Shasta Junior College and subsequently received a II-S student deferment. In 1967, he transferred to Cabrillo Junior College, and the II-S was continued. At the completion of his second year in college, his first at Cabrillo, Olson had completed 58% units, which fell short of the 60 units required by Cabrillo for junior college graduation after two years.
In December, 1968, Olson’s Local Board found that he was not “satisfactorily pursuing a full-time course of instruction” within the meaning of 32 C.F.B. sec. 1625.25 and reclassified him I-A. One day after the expiration of the thirty-day appeal period, Olson asked for an appeal and a personal appearance before the Board. The Board granted the appeal, but refused a personal interview. The I-A was upheld on appeal, and Olson was ordered to report for induction. He failed to do so, and was reordered to report. He did so, but refused to take the symbolic step forward. Olson was then indicted and convicted.
The Local Board was correct in revoking Olson’s II-S and reclassifying him I-A. Olson enrolled in a two-year college in October, 1966, and in October, 1968, should have completed the full 60-credit program required to graduate. He did not. Olson had four years from 1966 to obtain his baccalaureate degree; the letter sent by Tahoe College in 1969, attesting that he was enrolled as a full-time third-year student at that institution and would graduate in 1971, confirmed that he could not do so.
The Selective Service System recognizes that the four-year requirement need not be rigidly applied when a student transfers from a junior or community college to a four-year school. Local Board Memorandum No. 43, issued by the Director of Selective Service, provides :
“When a registrant transfers from a junior college or community college to a degree granting institution, and loses credit through no fault of his own, he may have less than the percent of course completion required in Regulation) 1625.25(c). * * * The local board may, in its discretion, grant a II-S deferment for the first year after transfer. * * * ”
But this Memorandum does not help Olson. First, the II-S deferment is discretionary with the Local Board. It need not be given. Second, the Memorandum applies only when a registrant transfers from a junior to a four-year institution and loses credit in that transition. Olson lost his credits in his move from Shasta Junior College to Cabrillo Junior College, or during his enrollment at either school. Finally, Olson has not proved that he lost his credits through no fault of his own.
Whether a student is “satisfactorily pursuing a full-time course of instruction” is a question of fact. In resolving that question, the main source of information and evidence is generally the college administration. “When a college cannot certify that the registrant is expected to graduate on time, certainly a local board would have a basis in fact for terminating the [II-S] deferment.” Coleman v. Tolson, 435 F.2d 1062, 1064 (4th Cir., 1970). Olson could not graduate in time. The Local Board was correct in revoking his II-S. United States v. Brooks, 415 F.2d 502 (6th Cir., 1969).
There is no evidence in the record to indicate that the Board’s refusal to reopen Olson’s classification when it received the Tahoe College letter was punitive in nature. Since Olson had not presented a prima facie case warranting reopening his classification, the Board’s refusal to do so was not illegal.
Finally, Olson cites United States v. Karlock, 427 F.2d 156 (9th Cir., 1970), and urges that once the Board had waived the thirty-day appeal requirement and allowed his appeal, it was also obligated to grant him a personal appearance. We find Karlock distinguishable. Karlock brought a new classification request to his board’s attention; and once it had agreed to entertain that new classification request, it had an obligation to afford the registrant an opportunity for both local and appeals board review. Here, Olson was continuously contesting the validity of the revocation of his II-S. To extend Karlock to such a situation is unwarranted. The Board’s decision here to bestow one benefit does not require it to bestow another.
Affirmed.
. (a) In Class II-S shall be placed any registrant who has requested such deferment and who is satisfactorily pursuing a full-time course of instruction at a college, * !! * such deferment shall continue until such registrant * * * fails to pursue satisfactorily a full-time course of instruction. * * *
(b) A student shall be deemed to be “satisfactorily pursuing a full-time course of instruction” when, during his academic year, lie has earned, as a minimum, ei'edits toward his degree which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year.
. Nor dill the Tahoe College letter constitute a prima facie case warranting reopening Olson’s classification. 32 C.F.R. sec. 1625.4; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Bd.2d 362 (1970). The letter confirmed the fact that Olson had not completed his second academic year according to the terms of the Regulations. Since Olson’s academic year terminated in October, 1968, United States v. Brandt, 435 F.2d 324 (9th Cir., 1970), a prima facie case would have to show that at that time Olson had completed 50% of the credits needed to graduate in 1970. The Tahoe College letter did not show that.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_othcrim
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES, Plaintiff-Appellee, v. Evan Raymond DALE, Defendant-Appellant.
No. 11427.
United States Court of Appeals Seventh Circuit.
May 26, 1955.
John J. Hoban, East St. Louis, 111., for appellant.
C. M. Raemer, U. S. Atty., East St. Louis, 111., and Edward G. Maag, Asst. U. S. Atty., East St. Louis, III., for appellee.
Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
DUFFY, Chief Judge.
This is a petition by defendant to be enlarged upon bail pending an appeal to this Court from his conviction under the provisions of Title 18 U.S.C. § 1951, known as the Anti-Racketeering Act. Defendant was tried before a jury upon an indictment containing three counts.
In the first count defendant and another were charged with conspiracy to obstruct interstate commerce by extorting $1,030,000 “by calling and conjuring up strikes, causing labor disputes, work stoppages, and difficulties in connection with the construction of” the power plant being constructed at Joppa, Illinois, “under various pretexts and claims of right but not actually for the purpose of obtaining legitimate labor objectives * * This count charged the attempted extortion from Ebasco Services, Inc. and Electric Energy, Inc. and the officers and agents of both. Ebasco Services, Inc. was the contractor, and Electric Energy, Inc. was the owner of the power plant being erected which was to furnish electric power for an atomic energy plant in Kentucky.
The second count charged the defendant and another with attempting to extort $1,030,000 from the same victims as alleged in count one. The third count charged the defendant alone with obstructing interstate commerce by extortion by extorting $7,500 from Maxon Construction Company, a sub-contractor under Ebasco Services, Inc.
The jury found the defendant guilty on all three counts and the District Judge sentenced defendant Dale to imprisonment for 15 years on each count, said sentences to run concurrently, and he imposed a fine of $10,000.00. Judge Wham refused defendant’s petition to be enlarged upon bail pending appeal, referring to Dale as a “menace” because of his threats to his community and his disloyalty to his Union.
Defendant concedes that there is ample evidence in the record from which the jury could conclude that the defendant threatened economic loss in the form of labor trouble if defendant’s demands for money were not met. Testimony at the trial also showed that defendant Dale asserted to his victims that 15 years ago he had been a chauffeur for a gangster, Blackie Perazzo of Chicago, and that by reason of Perazzo’s murder, it had been necessary for Dale to leave Chicago. He also told his victims that 15 years previously he had exchanged his shovel for a blackjack and had been using it effectively ever since, and bragged about his control over 38,000 laborers in southern Illinois, Indiana and Kentucky. Dale asserted to his victims that if they did not perform business in the “customary manner” trouble usually developed, and that one contractor failed to do business in the “customary manner” and seven men were killed. Defendant boasted that he had been indicted for murder but that the State’s Attorney who had procured the indictment was defeated at the next election by the labor vote controlled by defendant. Dale asserted to his victims that the job never would be completed unless they did business in the “customary manner” and that an example of what would happen if they failed to do so was a job where there had been 87 work stoppages. Dale explained to his victims that to insure labor peace it was customary to pay him 1% of the contract price in cash.
Rule 46(a) (2) Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: “Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. * * * ” Defendant contends a substantial question is involved because he claims that the Anti-Racketeering Act does not punish as extortion the obtaining of money or other valuable consideration by “fear” of mere economic reprisal. Secondly, defendant contends that there is not sufficient evidence in the record to support the charge that defendant was guilty of extortion by inspiring fear of physical violence. Defendant’s third point is that he was denied his constitutional rights because about a year prior to the time of the trial he was required to submit to inquisition before a Missouri grand jury at which time questions were directed to him with reference to certain labor practices at Joppa, Illinois.
We consider first defendant’s principal contention that a substantial question is here presented for review because “fear” of economic loss is insufficient to support a conviction under the Anti-Racketeering Statute. Defendant says: “This question appears never to have been directly decided in any court.” In making this claim defendant’s counsel is clearly in error. The most recent case is Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied 75 S.Ct. 604. That Court, after pointing out that the Anti-Racketeering Act does not curtail legitimate labor activities, and after setting forth the same contentions made by the defendants there as made by the defendant here, stated, 219 F.2d at page 189: “Defendants have cited no authority sustaining their position. We conclude that ‘fear’ as defined in the extortion section of the Anti-Racketeering Act should be given its ordinary meaning, and consequently ‘fear’ would include fear of economic loss.” The Court also pointed out that in Nick v. United States, 8 Cir., 122 F.2d 660, 138 A.L.R. 791, the only threat that Nick had made was to have his operators strike, and the only fear there involved was the fear of economic loss. Nevertheless, the Court there sustained the conviction under a statute where the wording was similar to the statute under which the defendant, in the instant case, was prosecuted.
Other cases where courts have held fear of economic loss and injury is sufficient under the extortion section of the Anti-Racketeering Act are United States v. Compagna, 2 Cir., 146 F.2d 524, and Hulahan v. United States, 8 Cir., 214 F.2d 441. We find no authority to the contrary. We do not think a substantial question is presented on this point.
Defendant seems to concede that if he had used threats which inspired fear of physical violence and extorted or attempted to extort money by reason thereof, such conduct would be within the scope of the Anti-Racketeering Act. At least one count of the indictment herein made such a charge and defendant was found guilty thereof. Defendant now says that there was not sufficient evidence in the record to support that charge. Although we do not have the record before us, defendant here admits that witnesses (which the jury was entitled to believe) testified to threats made by defendant as hereinbefore set forth. We think such threats would naturally and logically inspire fear of physical violence. As the sentences imposed where to run concurrently the burden was upon petitioner to show error as to each count. Ex parte Cohen, 9 Cir., 191 F.2d 300, certiorari denied Cohen v. United States, 342 U.S. 947, 72 S.Ct. 551, 96 L.Ed. 704. See also United States of America v. Wheeler, 7 Cir., 219 F.2d 773, 774; United States v. Kelley, 7 Cir., 186 F.2d 598, 602, certiorari denied 341 U.S. 954, 71 S.Ct. 1004, 95 L.Ed. 1375, and United States v. Perplies, 7 Cir., 165 F.2d 874, 877. The petitioner has not met this burden.
The remaining point relied on by defendant is that the trial court erred in denying defendant’s belated motion to dismiss the indictment. This motion was presented on the second day of the trial and claimed that defendant was subpoenaed and testified before a grand jury in the State of Missouri, and that at said time he did not have an attorney, nor was he advised of his privilege against self-incrimination. Although we think there is no merit to defendant’s contention, see Thompson v. United States, 7 Cir., 10 F.2d 781, certainly his objection to the indictment was not timely made. The indictment had been filed many months before the date of the trial. Defendant was represented by competent counsel. No showing is made that defendant claimed his privilege. His objection comes too late. United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687; Rule 12, Federal Rules of Criminal Procedure, 18 U.S.C.A.
The attitude of this Court has been extremely liberal for granting petitions for enlargement upon bail pending appeal. However, we consider this an exceptional case. First, we are convinced that no substantial question is presented which should be determined by this Court. Second, if defendant were released on bail there would be a temptation, at least, for defendant to absent himself. The government points out that the defendant is presently under six indictments in the Eastern District of Illinois charging 37 violations of the Anti-Racketeering Act; that he is under an indictment in the Eastern District of Missouri charging offenses under the same statute, and that he is also under indictment in the Southern District of Illinois on the charge of evading more than $150,000 in income tax. Undoubtedly the District Court considered these numerous charges might be a temptation for the accused to seek a more hospitable climate.
Applications for release upon bail pending appeal have been denied in similar cases. In Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied, 75 S.Ct. 604, the defendant’s motion for enlargement upon bail was denied by both the trial court and by the Court of Appeals for the Eighth Circuit. Thereafter, on May 5, 1954, Mr. Justice Clark of the Supreme Court likewise denied the application. Likewise in United States v. Callanan, D.C., 113 F.Supp. 766, defendant and four others were convicted of conspiracy under the Anti-Racketeering Act and of substantive offenses under that Act. Callanan was sentenced to imprisonment for 12 years under each count, and bail was denied him by the District Court pending appeal. Application was made by Callanan to the United States Court of Appeals for the Eighth Circuit which petition was there denied, 223 F.2d 171, following which Callanan applied to the Justices of the Supreme Court, but enlargement upon bail was denied him during the October Term, 1954.
Petition for enlargement upon bail is
Denied.
. Some of the Court opinions refer to this section as the “Hobbs Act”. The original Anti-Racketeering Act of 1934, 48 Stat. 979, was re-enacted with amendments in 1946, 60 Stat. 420.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
THE WILLIAM C. ATWATER. THE PERTH AMBOY NO. 2. McLAIN LINE, Inc., v. FALL RIVER NAV. CO.
No. 102.
Circuit Court of Appeals, Second Circuit.
March 4, 1940.
On Petition for Rehearing March 26, 1940.
Before SWAN, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
Bingham, Englar, Jones & Houston, of New York City (Leonard J. Matteson and Richard F. Shaw, both of New York City, of counsel), for appellant Fall River Nav. Co.
Hagen & Eidenbach, of New York City (Henry C. Eidenbach and John S. Bull, both of New York City, of counsel), for appellees Perth Amboy No. 2, Fred B. Dalzell and Tice Towing Line.
Carl F. Vander Clute, of New York City, for libelants-appellees McLain Line, Inc., Dwyer Lighterage Inc., Harold L. Valentine, Inc., and Bartle J. Daly, Jr.
AUGUSTUS N. HAND, Circuit Judge.
On February 17, 1937, the S. S. At-water was in collision with several of twenty-nine barges which were towed by the tug Perth Amboy No. 2. Damage resulted both to seven of the barges and to the Atwater. The collision occurred while the Atwater was at anchor in the main ship channel of the Upper Bay of New York Harbor, a short distance south of the Statue of Liberty. The owners of the damaged barges filed a libel against the Fall River Navigation Company which owned the Atwater and the tug Perth Am-boy No. 2 which had the barges in tow. The owner of the Atwater impleaded Fred B. Dalzell, the managing owner of the tug and her helper tugs, and Tice Towing Company, the operator. The Fall River Navigation Company likewise filed a libel against the Perth Amboy No. 2 and Fred B. Dalzell, the managing owner of the tug and her helper tugs, and Tice Towing Line, the operator. The owner of the Atwater was found by the trial court to be solely liable for the damages arising from the collision because she had negligently obstructed the navigation of the tow by anchoring in a navigable channel and had not maintained proper lights. The owner and operator of the tugs which were engaged in towing the barges were found to have exercised due care and to have been in no way responsible for the collision. Accordingly an interlocutory, decree was granted to the libellant in the first suit with the usual reference as to damages. The petition to implead the owner and operator of the tugs in the first suit and the libel in the second suit were dismissed. We hold that the damages should be divided between the Fall River Navigation Company and the Perth Amboy No. 2, her owner and operator.
Without any adequate excuse the Atwater anchored at a point about 500 feet from the westerly boundary of the main ship channel which is a “narrow channel”. Outbound vessels are accustomed to hold to the westerly side of the channel in compliance with the Narrow Channel Rule, 33 U.S.C. § 210, 33 U.S.C.A. § 210. The LaBretagne, 2 Cir., 179 F. 286; The Deutschland-Munargo, D.C., 14 F.Supp. 282, affirmed, 2 Cir., 90 F.2d 454. There can be no doubt that anything which substantially narrowed the channel would embarrass the navigation of such a tow as that of the Perth Amboy No. 2. She had 29 barges made up in seven tiers of four barges each with a single tail barge. The aggregate length of the tug, towing lines and barges was about 1,000 feet, and a northeasterly wind was blowing at about 25 miles an hour. The difficulties of the tug were increased by the position of the after anchor light on the Atwater which was obscured by a pilothouse that stood higher above the dock than the anchor light. Moreover, there were unscreened deck an'd house lights approximately on a plane with the forward anchor light so that the latter was not readily distinguishable as such from a long distance and was not so lighted that it could best be seen. 33 U.S.C. Sec. 171, 33 U.S.C.A. § 171. Several witnesses testified that the lights of the Atwater were confusing to those navigating the Perth Amboy No. 2 and led them to the belief that the. Atwater was moving down the channel instead of anchored in it. We think that the court below was right in holding that the ‘ Atwater was liable for damages arising from its violation of the statute which makes it unlawful to “anchor vessels * * * in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft * * 33 U.S.C. Sec. 409, 33 U.S.C.A. § 409; United States v. St. Louis, etc., Transp Co., 184 U.S. 247, 22 S.Ct. 350, 46 L.Ed. 520; Otto Marmet Coal & Min. Co. v. Fieger-Austin Dredg. Co., 6 Cir., 259 F. 435; Strathleven Steamship Co. v. Baulch, 4 Cir., 244 F. 412; The Caldy, 4 Cir., 153 F. 837.
We cannot agree with the finding that the Atwater was solely at fault. When proceeding down the channel with his tow, the master of the Perth Amboy No. 2 seems to have been engaged in watching a Russian vessel he was passing, and not to have looked to see what was ahead of him. Because of inattention he saw no lights of the Atwater until he got within about 750 feet of her. The Russian vessel was about a quarter of a mile to the north, of the Atwater and we can see no reason why the master of the tug could not see the steamship long before he did. Even allowing for some temporary confusion caused by the lights on the Atwater and the erroneous belief that she was proceeding down the harbor instead of lying at anchor in the main channel, the master of the tug discovered his mistake within a second or two after he first saw the Atwater and could have navigated his vessel so as to avoid a collision had he seen the steamer in time. We can discover no excuse for not seeing the lights of the Atwater at all' until she was only 750 feet away. If the master had seen her a quarter of a mile away he probably would and certainly could have gone to the 'east of her instead of passing her on the west as a result of which the tow swung across her bow and was carried by the north wind, then blowing at 25 per hour, against the Atwater. If he had promptly seen the Atwater and passed to the east of her he would have had a clear channel of about 2,000 feet in width within which to navigate. We can see nothing to explain the unfortunate manoeuvre but the lack of a diligent lookout and the ignorance of the presence of the Atwater in the channel. It seems evident that the collision between the steamer and the barges would have been avoided if the tug had seen the Atwater soon enough to lay a course to the east where there was room to navigate, instead of a course in which the tow would be swung directly across her bow.
Counsel for the Atwater call our attention to the fact that the Tice Towing Line paid $10,100 in settlement of the claims of the owners of the barges and took an assignment of their claims to one Lacey, an employee of the Dalzell Towing Company, of which the respondent Fred B. Dalzell is the president and a stockholder. The payment was made under an agreement whereby the suit by, the barge owners was to be instituted in the name of the owners. It is contended on behalf of the Perth Amboy No. 2, her owner and operator, that damages in excess of the $10,100 may be recovered under the first libel if they can in fact be proved. We do not agree. The Tice Towing Line, one of the joint tort feasors, furnished the money for the settlement. Contribution is an equitable right and if allowable between joint tort feasors, as it is in admiralty, no more ought to be exacted than one-half of the amount actually paid in satisfaction of the original claims.. This is in accord with our decision in The Gulf Stream, 2 Cir., 64 F. 809. Am.Law Inst., Restatement, Restitution § 85, Comment a; Sutherland on Damages, 4th Ed. 1916, § 1287; Merchants Discount Corp. v. Federal Street Corp., Mass., 14 N.E.2d 155, 118 A.L.R. 412; Bonney v. Seely, 2 Wend., N.Y., 481, 483; Rider v. Coyne, 246 Mich. 365, 224 N.W. 332.
The interlocutory decree upon the libel by the owners of the barges is so modified as to divide damages in the amount of $10,100 and interest between the Fall River Navigation Company and the Perth Amboy No. 2, the owner Fred B. Dalzell and Tice Towing Line. The decree dismissing the libel by Fall River Navigation Company against Tug Perth Amboy No. 2, Fred B. Dalzell and Tice Towing Line is reversed and an interlocutory decree with the usual reference is granted to Fall River Navigation Company against Perth Amboy No. 2, Fred B. Dalzell and Tice Towing Line for half damages. No costs.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_genresp2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
CHASE NAT. BANK OF NEW YORK et al. v. SAYLES et al.
(Circuit Court of Appeals, First Circuit.
March 29, 1926.)
No. 1882.
1. Courts <@=505 — Suit against executors and legatee to enforce assignment of interest in estate held within equity jurisdiction of federal court, though res was in possession of probate court.
Suit against executors and legatee to enforce assignment by legatee of interest in estate held within ■ equity jurisdiction of fed.eral court on, ground of diversity of citizenship, though res involved was already in possession of probate court having concurrent jurisdiction, the decree rendered being operative against executors personally.
2. Executors and administrators <@=75 — Gifts <@=>27— Relationship of executor to legatees is substantially that of trustee; legatee having equitable interest in property of estate which he may transfer by irrevocable gift.
The relationship of executor to legatees and creditors is substantially that of trustee, and legatee has such an equitable interest in the property of the estate that he may effectively transfer or assign the whole or a part thereof by irrevocable gift, which equity will uphold.
3. Wills <@=>723 — In equity, legatee has equitable interest in property of estate, though such interest may be subject to abatement.
In equity, legatee has, in addition to right in personam against executor, an equitable interest in property of estate to extent of his legacy, though such interest may be subject to abatement.
4. Gifts <@=>28(l) — Equitable interest in property may be assigned in whole or in part by gift, which is irrevocable, if intent to pass present interest and delivery so far as possible is shown.
Equitable-interests in property may be assigned in whole or in part by gift, and, if intent to pass, a present interest and such delivery as subject-matter permits is shown, gift is irrevocable.
5. Gifts <S=>27 — Though legatee’s right in estate may be only legal chose in action, he may make irrevocable gift thereof, which equity will uphold.
If legatee’s right to share in estate amounts to no more than a legal chose in action, he may nevertheless make a valid irrevocable gift of such right or interest, which equity will uphold.
6. Assignments <@=»58.
Assignment of part of a debt or demand is enforceable in equity against debtor, whether he accepts or assents to it or not.
7. Wills <S=»740(4)— Claimant of interest in estate under statutory compromise takes as legatee (Gen. Laws R. I. 1909, c. 3I2,'§ 23).
Right in estate arising from statutory compromise under Gen. Laws R. I. 1909, e. 312, § 23, is same as if will had originally made provision for claimant, who takes as a legatee.
Appeal from the District Court of the United States for the District of Rhode Island.
Action by the Chase National Bank of New York and another against Mary D. A. Sayles and others. From decree dismissing bill (6 F.[2d] 403), plaintiffs appeal.
Reversed and remanded.
This is a bill in equity, brought by the Chase National Bank of the City of New York, a national banking association having its principal place of business in New York City, and Frederick K. Ruppreeht, a resident and citizen of the state of Connecticut, against Charles 0. Read, James R. MaeCoIl, and Kenneth F. Wood, residents and citizens of the state of Rhode Island, individually and as executors of Frank A. Sayles, late of Pawtucket, in the state of Rhode Island, deceased, and Mary D. A. Sayles, a resident and citizen of Rhode Island. After stating the citizenship of the parties and that the matter in controversy exceeds $3,000, exclusive of interest and costs, the allegations of the bill are:
“Second. The said Frank A. Sayles died, domiciled in said Pawtucket, on March 9, A. D. 1920, leaving a last will with five codicils thereto, all of which, as modified by a certain agreement of compromise authorized and approved in and by a certain decree of the superior court for said county of Providence in said state of Rhode Island, entered on May 25, 1920, in a certain cause in equity numbered 5018 and entitled ‘Charles O. Read et al., Executors and Trustees, v. Mary D. A. Sayles et al.,’ were duly admitted to probate in the probate court of said Pawtucket.
“Third. Thereafter, on March 31, 1920, letters testamentary issued out of said probate court of Pawtucket to the defendants Charles O. Read, James R. MaeCoIl, and Kenneth F. Wood, the executors named in said will and codieüs, hereinafter called ‘said executors,’ and thereafter said executors duly accepted their appointment, and on April 2, 1920, first published in accordance with law the notice of their appointment as such executors in the Evening Times, a daily newspaper published in Pawtucket.
“Fourth. In and by said will and codicils of said Frank A. Sayles, as modified by said agreement of compromise, the defendant Mary D. A. Sayles was bequeathed the sum of four million dollars ($4,000,000), hereinafter called said ‘four million dollar legacy.’
“Fifth. Thereafter, on September 15, 1920, the defendant Mary D. A. Sayles executed and delivered to the plaintiff Frederick K. Ruppreeht a certain instrument in writing under seal, whereby she assigned and transferred to said Frederick K. Ruppreeht, his executors, administrators, and assigns, an interest in said legacy to the extent of fifteen hundred thousand dollars ($1,500,000), of which assignment said executors had immediate notice.
“Sixth. Prior to the time of the entry of the decree authorizing said agreement of compromise, all of the defendants had knowledge that the plaintiff Frederick K. Ruppreeht had and intended to assert a large claim against the said executors and the estate of the said Frank A. Sayles, and prior to September 15, 1920, when the defendant Mary D. A. Sayles executed and delivered to the plaintiff Frederick K. Ruppreeht the said instrument of assignment, the details of the said claim had been presented to the defendant executors, who had advised the defendant Mary D. A. Sayles thereof, and all of the defendants were aware that the said claim amounted to the sum of two million dollars ($2,000,000). Said assignment was made with the consent and approval of said executors, and, when the said assignment was made, the defendant Mary D. A. Sayles and the said executors intended that it should be accepted by the plaintiff Frederick K. Ruppreeht, and both she and the said executors were well aware that he intended to accept it, in full settlement of his said claim against said estate. Because of the said assignment to the plaintiff Frederick K. Ruppreeht by the said Mary D. A. Sayles, and in reliance thereon, the plaintiff Frederick K. Ruppreeht refrained from formally presenting the said claim for two million dollars ($2,-000,000) to the said executors, and refrained from filing the same as a claim against the estate of the said Frank A. Sayles within the time allowed by law for the presentation and filing of claims, and all of tbe defendants herein were well aware that the plaintiff Frederick K. Rupprecht failed to present and file, and refrained from formally presenting and filing, the said claim because, of said assignment to him by the said defendant Mary D. A. Sayles and in reliance thereon.
“Seventh. On July 6, 1921, in consideration of the sum of one million five hundred thousand dollars ($1,500,000) to him paid by the plaintiff the Chase National Bank, the plaintiff Frederick K. Rupprecht executed and delivered a certain instrument in writing under seal, whereby he sold, assigned, and transferred to the Chase National Bank, its successors and assigns, all his right, title, and interest to the extent of one million five hundred thousand dollars ($1,500,000) in and to said four million’ dollar legacy and all his right, title, and interest in and to said assignment dated September 15, 1920, and executed and delivered to him by the defendant Mary D. A. Sayles, as aforesaid, of which said assignment to said the Chase National Bank, said executors, and said Mary D. A. Sayles did thereafter receive due notice.
“Thereafter demand was duly made upon said executors on behalf of said Frederick K. Rupprecht and said the Chase National Bank for payment of the amount of said four million dollar legacy assigned by said Mary D. A. Sayles to said Frederick K. Rupprecht and thereafter assigned by said Frederick K. Rupprecht to said the Chase National Bank as aforesaid, namely, the sum of one million five hundred thousand dollars ($1,500,000), which demand was refused, and said executors have made no payment on account of said legacy, either to the plaintiff Frederick K. Rupprecht or to the plaintiff the Chase National Bank.
“After the time for filing claims against said estate had expired, the said Mary D. A. Sayles notified the said Frederick K. Ruppreeht and the said the Chase National Bank that she repudiated the said assignment to the said Rupprecht; on information and belief, the plaintiffs aver that such notice of repudiation was given by the said Mary D. A. Sayles at the instance and request of the said executors, and that, at the time when it was. given, all of the defendants herein were well aware that the time for filing claims against said estate had expired; and the plaintiffs aver that neither said the Chase National Bank nor said Frederick K. Ruppreeht had any notice prior to said assignment from said Frederick K. Rupprecht to said the Chase National Bank or prior to the expiration of said time for filing claims against said éstate either that the said Mary D. A. Sayles had any intention of attempting to repudiate her said assignment, or that said executors had any intention of declining to pay to the plaintiffs their interest in said four million dollar legacy.
“Eighth. On information and belief, the plaintiffs aver that said executors have paid to the defendant Mary D. A. Sayles a portion of said four million dollar legacy, to wit, the sum of two million five hundred thousand dollars ($2,500,000), and that at the time of making said payment both said executors and said Mary D. A. Sayles had due notice, as hereinbefore set forth, of said assignments to said Frederick K. Rupprecht and said the Chase National Bank respectively. And the plaintiffs fear that said executors will, unless restrained by order of this court, pay the balance of said four million dollar legacy, to wit, one million five hundred thousand dollars ($1,500,000), to said Mary D. A. Sayles.
“Ninth. On information and belief, the plaintiffs aver that, after all debts and other liabilities of said Frank A. Sayles and the expense of the administration of his estate are paid, there will remain in the hands of said executors sufficient property and funds to satisfy all general and specific legacies under said will, including the interest in said four million dollar legacy, assigned to’ said the Chase National Bank as aforesaid, to wit, the sum of- one million five hundred thousand dollars ($1,500,000), with lawful interest thereon, and that the administration of said estate has reached such a point that it is possible and proper for said executors to satisfy and pay all of said four million dollar legacy with lawful interest thereon.
“On information and belief, plaintiffs aver that the said executors have paid in full certain of the legacies bequeathed by the said Frank A. Sayles in his said last will and codicils thereto, and have failed to pay the said one million five hundred thousand dollars ($1,500,000) to the said the Chase National Bank, because, at their instance and request, the said Mary D. A. Sayles has notified plaintiffs herein that she repudiates her said assignment to the plaintiff Rupprecht as hereinabove averred and alleged.
“Tenth. On information and belief, plaintiffs aver that the defendant Mary I). A. Sayles does not own assets or property of the value of one million five hundred thousand' dollars ($1,500,000) other than assets or property which includes, or has been derived by her from the use of, the two million five hundred thousand dollars ($2,500,000) paid,to her on account of the said four million dollar legacy by the said executors as hereinabove averred; that she is without business experience or experience in investing funds, and that the disposition of said portion of said legacy so paid her is now subject solely to her personal inclination.”
The prayers were: (1) That the executors be restrained from making further payments out of the funds of the estate on account of the four million dollar legacy to the defendant Mary D. A. Sayles or her assigns or to any one other than the Chase National Bank, its successors and assigns; (2) that Mary D. A.‘ Sayles be enjoined from receiving from said executors any further payments on account of said legacy and that she be restrained from assigning or in any way incumbering or transferring her interest, if any, in and to such part of the legacy as now remains unpaid; (3) that the validity of said assignment now held by the plaintiff bank be determined; that it be determined whether the proper administration of the estate admits of present payment of said assignment; that, if it is determined that it does, the executors be required to pay said sum with lawful interest to the plaintiff bank; otherwise that the executors be directed to retain, subject to the order of the court, sufficient property and assets of the estate to pay said sum of $1,500,000, with lawful interest thereon, until such time as the administration of said estate will permit the payment of said sum, whereupon said executors be directed to pay said sum, with lawful interest, to the plaintiff bank; and that the defendant Mary-D. A. Sayles be required to take such action, in said probate court of Pawtucket or elsewhere, as will be necessary or convenient to facilitate such payment; (4) that said executors be required to make discovery of the property and assets in their hands as executors of the estate, and concerning the payments, if any, made by them on account of the' four million dollar legacy; (5) that the defendant Mary D. A. Sayles be required to account to the plaintiff bank with respect to any payments heretofore received by her from said executors on account of the legacy, and to pay to the plaintiff bank the sum of $1,500,-000, with lawful interest thereon; that she be enjoined from in any way incumbering or transferring the portion of said legacy received by her or any property or assets in which the same has been invested; and that pending the final hearing she be ordered to pay into court the sum of $1,500,000, together with a sum sufficient to cover interest thereon to the date of the order or decree herein requiring such payment, or that she be required to pay the same to a trustee to be appointed by the court, to be held subject to the order of the court; (6) that a preliminary injunction pendente lite be granted; and (7) that the plaintiffs may have such other and further relief as may be deemed just and equitable.
To this bill the defendants filed a motion to dismiss in the nature of a demurrer, setting out six grounds: (1) Because the court was without jurisdiction to hear and determine the suit; (2) -because the matter involv-. ed was a matter of probate subject to determination by the probate courts of Rhode Island; (3) because the controversy was one concerning a res which is already in the possession of another court of concurrent jurisdiction, to wit, the probate court of the city of Pawtucket; (4) because the plaintiffs seek to enforce the payment of a legacy by the executors of an estate, and it does not appear that the executors have filed in the office of the clerk of the probate court in which the will was probated a statement setting out the names of the legatees and the amounts to be paid and the property to be turned over to them respectively, or to be held by themselves as trustees, or that they have failed to comply with the statutes of Rhode Island relating to the filing of said statements; (5) because said bill of complaint does not state facts sufficient to entitle the plaintiffs or either of them to the relief prayed for or to any relief in equity; and (6) because it does not appear in and by said bill of complaint that any consideration was given' for said assignment alleged to have been made to the plaintiff Frederick K. Ruppreeht by the defendant Mary D. A. Sayles.
After hearing the motion, the District Judge filed a written opinion, in which he expressed the view that a total assignment of a pecuniary legacy by way of gift was enforceable in equity, but a partial assignment was not, unless made upon consideration, and entered a decree dismissing the bill, from which this appeal is prosecuted.
Eldon Bisbee, of New York City, and Charles F. Choate, Jr., of Boston, Mass. (Herbert M. Sherwood, Arthur M. Allen, Sidney Clifford, Roger T. Clapp, Sherwood, Heltzen & Clifford and Hinckley, Allen, Tillinghast & Phillips, all of Providence, R. I., on the brief), for appellants.
Robert B. Dresser and Claude R. Branch, both of Providence, R. I. (Samuel Williston, of Cambridge, Mass., and Edwards & Angell, of Providence, R. L, on the brief), for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge
(after stating the facts, as above). The defendants have not briefed or argued the first four objections assigned in their motion to dismiss, and we do not purpose to consider them at length.
The jurisdiction of the court as a federal court is adequately stated, for the bill alleges diversity of citizenship, and that the amount in controversy exceeds, exclusive of interest and costs, the sum'of $3,000.
Then, again, if the validity of the assignment and the rights of the plaintiffs therein could be determined in the probate court of Rhode Island, that in no way affects the general chancery powers of this or of the District Court, the rights of citizens of different states being involved. Waterman v. Canal Louisiana Bank Co., 30 S. Ct. 10, 215 U. S. 33, 54 L. Ed. 80; Atwood v. Rhode Island Hospital Trust Co. (C. C. A.) 275 F. 513, 24 A. L. R. 156. The proceeding being of the nature stated, it in no way interferes with the due administration of the estate in the probate court, and any decree which may be entered will operate, so far as the exeeutors are concerned, against them personally. Allen v. United States (C. C. A.) 285 F. 678, 683, 684.
In support of the fifth and sixth grounds stated in the motion to dismiss, the defendants contend that, inasmuch as it appears in the bill of complaint that the exeeutors did not promise to pay the assignee, Rupprecht, or his assignee, the bank, there was no novation, and, as no consideration was paid for the assignment, and the assignment was not of the whole, but a part, of the legacy, this proceeding cannot be maintained. The reason asserted for this contention is that the right of a pecuniary legatee is not an equitable chose in action or an equitable right in property, but is a legal chose and a right of the same nature as that of a creditor against his debtor; that the legal title to such a chose cannot be parted with, and no equitable right or interest in or "to it passes by assignment without consideration, whether the assignment purports to be total or partial. In other words, their position is that the possessor of a legal title to property cannot part with an equitable title therein, except by way of a declaration of trust, or create therein an interest in the nature of an equitable lien, except by contract based upon consideration; that in this case there,was no declaration of trust, so no equitable property interest passed to the assignee, and that, no consideration having been paid, no equitable lien arose; that, had the assignment purported to have been of a total interest, the law would imply a power to sue in the name of the assignor and, if for consideration, the power would be irrevocable although no interest in the subject-matter passed; and that, if the assignment was partial and for consideration, although in such ease no authority at law would be implied to sue in the name of the assignor, equity would afford relief because of the consideration paid, but would not aid a volunteer. In its final analysis their contention amounts to this: That the interest of a pecuniary legatee is a legal chose in action; that it cannot be the subject of a gift by way of a total assignment, because no present interest in the subject-matter would pass and the power to sue would be revocable; that, if the gift was a partial assignment, no present interest in the subject-matter would pass, and, being without consideration, equity would not lend its aid.
The plaintiffs' contention is that the interest of a pecuniary legatee is an equitable interest in property; that the executors stand as trustees of the decedent's estate, at least as to the personalty, (1) to pay debts; (2) to carry out the specific legacies; (3) to pay the pecuniary legacies; and (4) to distribute the balance of the estate, if any, among the residuary legatees; or, if the relationship between an executor and a pecuniary legatee is not strictly that of trustee and cestui que trust, nevertheless the right is not a legal chose such as exists between debtor and creditor, but an equitable chose, which the legatee may part with, and that in either case he can pass a present equitable title or interest in the whole or in a part of such legacy by gift or by sale; that, inasmuch as the legatee may part with a present equitable interest, whether that interest be in property or in an equitable chose, if it is by way of gift, and the transaction is executed so far as the nature of the subject-matter permits, as it was by assignment under seal in this case, the gift cannot be revoked, any more than it could have been, had the subject of the gift been a mere chattel; that to establish a completed gift by way of assignment of a pecuniary legacy, whether of the whole or of a part, it is only necessary to show an intention on the part of the legatee to give the whole or a partial interest, and an execution of that intent by such delivery as the nature of the subject-ma,tter permits; that as the delivery of a deed of gift by the owner of chattels in the possession of a third party under a lease would be an adequate delivery in execution of the donor’s intention to make a completed gift (Corning v. Records, 46 A. 462, 69 N. H. 390, 76 Am. S't. Rep. 178), so here a delivery of a deed of assignment would be an adequate execution of the donor’s intent to constitute a completed gift of a part of the legatee’s interest in the legacy; that the essential feature of a gift is that its subject-matter be such that a present interest, legal or equitable, may be parted with by actual or symbolical delivery to the donee in execution of the donor’s intent to give; and that equity is not hampered as to remedy, as is the law, in the enforcement of a gift of a part any more than of a gift of the whole.
After an extended examination of the questions involved, we have reached the conclusion that the contention of the plaintiffs, as above stated, is correct. Without stating the early conception of the law as to the relationship of an executor to creditors and legatees, or wherein it differed from that of a strict trustee, we regard it now settled that it is substantially that of a trustee; that, while his powers in the management and disposition of the property of the estate in some respects, perhaps, may be broader than those of an ordinary trustee, and a person dealing with him in the disposition of its assets may safely assume that he is acting in the line of his duty, unless upon the face of the transaction the contrary appears or he has knowledge of the executor’s purpose to be guilty of a -breach of trust, nevertheless, in the main, the relationship is that of a trustee and cestui que trust, and the legatee has such an equitable interest in the property of the estate that he may transfer it.
In Jeremy, Eq. Jur. (1828) p. 103, it is said:
“The original and ordinary jurisdiction, in matters testamentary, belongs to the ecclesiastical courts, and it is by virtue of the probate, letters of administration, or letters of administration with the will annexed, that such appointee obtains complete power over the personal estate of the deceased person whom he thus represents. Prom the conscientious duty, however, which necessarily follows such appointments, this court construes a trust to arise in the executor or administrator for the persons who are entitled to the property or are beneficially interested therein, and, without infringing upon the jurisdiction of the ecclesiastical courts, it enforces execution thereof.”
In 1 Pomeroy, Eq. Jur. § 156, it is said:
“The theory of trusts, express and implied, having been established, it was easily extended to certain other analogous subjects, which were thus brought within the equitable jurisdiction. One of the most important of these was the administration of the estates of deceased persons. The relation subsisting between executors and administrators, on the one hand, and legatees, distributees, and creditors, on the other, has so many features and incidents of an express active trust, that it-has been completely embraced within the equitable jurisdiction in England, and also in the United States, where statutes have not interfered to take away or abridge the jurisdiction. * * * This jurisdiction at length became firmly established and practically exclusive on this ground of trusts: That the relation between the executor or administrator and the parties interested in the estate is virtually one of express trust, which equity has always the power to enforce.”
In Adair v. Shaw, 1 Sehoales & L. 243, 262, it is said:
“The only thing to be inquired in a court of equity is whether the property bound by the trust has come to the hands of the persons who were either bound to execute the trust, or to preserve the property for the persons entitled to it, and the whole jurisdiction of courts of equity in the administration of assets is founded on the principle that it is the duty of the court to enforce the execution of trusts, and that the executor or administrator, who has the property in his hands, is bound to apply that property in the payment of debts and legacies, and to apply the surplus according to the will, or, in the ease of intestacy, according to the statute of distributions. The sole ground on which courts of equity proceed in cases of this kind is the execution of trusts, and, if we advert to the eases on the subject, we shall find that trusts are enforced, not only against.those persons who rightfully are possessed of the trust property as trustees, but also against all persons who come into possession of the property bound by the trust with notice of the trust, and whoever so comes into possession is considered as bound, with respect to that specific property, to the execution of the trust.”
In Green’s Adm’r v. Creighton, 23 How. 90, 106 (16 L. Ed. 419), it is said:
“In the court of chancery, executors and administrators are considered as trustees, and that court exercises original jurisdiction over them, in favor of creditors, legatees, and heirs, in reference to the proper execution of their trusts.”
In Smith v. Ayer, 101 U. S. 320, 327 (25 L. Ed. 955), the court said:
“The executor, though holding the title to the personal assets, is not absolute owner of them. They are not liable for his debts, nor can he dispose of them by will. He holds them in trust to pay the debts of the deceased, and then to discharge his legacies, and, as in all other cases of trust, he is personally responsible for any breach of duty; and property thus held, acquired from him by third parties with knowledge of his trust and his disregard of its obligations, can be followed and recovered. The law exacts the most perfect good faith from all parties dealing with a trustee respecting trust property. Whoever takes it for an object other than the general purposes of the trust, or such as may reasonably be supposed to be within its scope, must look to the authority of the trustee, or he will act at his peril.”
See, also, Sherburne v. Goodwin, 44 N. H. 271, 279, 280; M’Leod v. Drummond, 14 Ves. 353, on appeal 17 Ves. 152; Griffith v. Frazier, 8 Cranch. 9, 24, 3 L. Ed. 471; Blood v. Kane, 29 N. E. 994, 130 N. Y. 514, 15 L. R. A. 490; Marvel v. Babbitt, 9 N. E. 566, 143 Mass. 226; Mechanics’ Savings Bank v. Waite, 22 N. E. 915, 150 Mass. 234; Davis et al. v. Newton, 6 Metc. (Mass.) 537, 541; Kent v. Dunham, 106 Mass. 586, 590, 591; Story’s Eq. Jur. §§ 581, 593.
These decisions disclose the idea that a legatee has, in equity, in addition to a right in personam against the executor, an equitable interest in the property of the estate to the extent of his legacy, even though his interest may be subject to abatement in ease the assets remaining after payment of the debts and expenses of administration may be less than enough to pay his legacy in full.
In New Jersey, as early as 1834, in the case of King v. Berry, 3 N. J. Eq. 44, the matter here under consideration was involved. In that ease the assignee of a pecuniary legacy brought a bill in equity against the executors of an estate for an accounting and payment to him of the legacy, and was allowed to recover. The Chancellor, speaking for the court, said:
“They [the assignors] were legatees under a will. Their rights were not common-law rights. * * * For a long series of years legacies have been suable in the Court of Chancery, and that court has now, if it has not always had, a concurrent jurisdiction with the spiritual court. That they may now be sued for in the common-law, courts, by the statute, does not alter their essential character. They do not change their nature to suit the law of the court, but the court changes its law, and accommodates itself to their peculiar character. When suits for legacies were first prosecuted in Courts of Chancery they were obliged to adopt the law of the spiritual forums; and so it has been with the courts of common law. 3 Ridg. P. C. 243.
“The character of the right, then, is not altered by making it cognizable, under certain circumstances, in the common-law courts. It remains essentially an equitable interest. It is not barred by the statute of limitation; at least such was the law, and such it is still, in England. * * *
“The claim to a legacy is essentially an equitable, and not a legal claim. That it is an assignable interest cannot be doubted, and the assignment, if it passes anything, must pass the whole right of the assignor.” And therefore “it was not necessary to make the assignors parties to this suit.”
In 1864 the conclusion reached in King v. Berry was affirmed in Executors of Luse v. Parke, 17 N. J. Eq. 415. In that case it appeared that a pecuniary legatee, whose legacy was to be paid to him when he reached 23, became 23 on April 11, 1862; that in 1860, when he was 21 years old, he assigned his legacy to the petitioner, Parke; that January 29, 1861, he again assigned the legacy to one Vliet, who gave notice to the executors; and that Vliet assigned it to Kennedy, one of the executors. The right.of the first assignee was upheld. It was there said:
“The defense is based on the idea that the legacy, like any other chose in action, is not assignable at law; that a mere equitable interest passed by the assignment, the legal title remaining in the assignor; and that, the money having been paid by the executors to the second assignee, without notice of the first assignment, they cannot be prejudiced by the secret equity of the first assignee. But the title to the legacy is not a common-law right. It was held by the Chancellor, in King v. Ex’rs of Berry, 3 N. J. Eq. 54, that a claim to a legacy is essentially an equitable, not a legal, claim, and that the assignment must pass the whole right of the assignor; that there does not remain in the assignor, after the assignment of a legacy, a distinct, subsisting right, capable of being assigned, but that the entire interest passes.”
J
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_juryinst
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Robert Lee MASON, Appellant, v. MATHIASEN TANKER INDUSTRIES, INCORPORATED, Appellee.
No. 8312.
United States Court of Appeals Fourth Circuit.
Argued April 12, 1961.
Decided Jan. 3, 1962.
Sidney H. Kelsey, Norfolk, Va., for appellant.
Harry E. McCoy, Norfolk, Va. (Sea-well, McCoy, Winston & Dalton, Norfolk, Va., on the brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
BOREMAN, Circuit Judge.
Plaintiff, Robert Lee Mason, was a seaman oiler on the tanker “Mission Capistrano,” owned by the United States Navy but operated under license by the defendant, Mathiasen Tanker Industries, Inc. On September 29, 1958, plaintiff fell while aboard and was injured. In his action to recover damages, he complains, (1) under the Jones Act, that his injuries were caused by the negligence of the employer-defendant and (2) by the unseaworthiness of the vessel.
During a trial which lasted several days, the jury heard much conflicting evidence on the issue of defendant’s liability for negligence and unseaworthiness. It was shown that Mason’s work required him to hourly oil the bearings on two blowers located on a platform near the top of the multilevel engineroom. Plaintiff’s witnesses testified that the blower bearings leaked oil and that there was, during a great part of every day, excessive oil on the deck of the blower platform and that plaintiff was required to wade through this oil in the performance of his regular duties. Defense witnesses either denied the presence of any oil on the blower platform or questioned the amount of oil there. Plaintiff claimed that his shoes became soaked with oil from the blower platform deck and this oil in his shoe soles caused him to slip while descending the steep steel stairs (called ladders aboard ship) connecting the several levels of the engineroom and to fall down an inclined ladder, equipped with handrails, landing on the steel evaporator flat which is one level below the floor of the main engineroom. There were no eye witnesses to the accident. It is undisputed, however, that plaintiff sustained serious injuries in the fall and that he had to be removed from the ship at sea to a hospital in Charleston, South Carolina, and from there transferred to the United States Public Health Service Hospital in Savannah, Georgia. He was hospitalized from the time of the injury until October 21, 1958, when he was discharged and certified as fit for duty within a week’s time. Mason returned to Norfolk, Virginia, and was there examined by a psychiatrist. He was again certified as fit for duty on November 3, 1958, by the Norfolk Marine Hospital where he was an out-patient. After filing this action on November 14, 1958, Mason returned to the Norfolk Marine Hospital for further out-patient treatment. He was again discharged as fit for duty on December 24, 1958.
A special verdict was returned by the jury as follows:
“VERDICT OF JURY
“1. Were the defendant, its officers or crew members (other than plaintiff) guilty of any negligence which was a proximate cause of the accident and injuries sustained by plaintiff on September 29,1958 ?
YES [x] NO [ ]
“2. Was the vessel MISSION CAPISTRANO unseaworthy as defined in the charge of the Court and was such unseaworthiness a proximate cause of the accident and injuries sustained by plaintiff on September 29, 1958?
YES [x] NO [ ]
“3. Was the plaintiff guilty of any contributory negligence which was a contributing proximate cause of the accident and injuries sustained by plaintiff on September 29, 1958?
YES [x] NO [ ]
“4. On the claim for damages, including any claim for loss of wages, if you conclude that plaintiff is entitled to recover, what amount is the plaintiff entitled to recover?
$2,000.00
“5. On the claim for maintenance, on what date did the plaintiff obtain his maximum recovery following his injuries on September 29, 1958, as defined in the charge of the Court?
December 24, 1958”
Plaintiff appeals from the jury’s determination of damages, claiming that the $2000 award is inadequate in view of the serious nature of his injuries, his loss of wages over an extended period of time (he claims that he was able to work less than three months during the period from the date of injury to the trial in January 1960) and his pain and suffering at the time of the accident. He contends that the alleged inadequate verdict was the result of errors committed during the course of the trial. We do not express any opinion on the adequacy of the award as found by the jury, but we conclude that the plaintiff is entitled to a new trial on the sole issue of damages. The jury determined the issue of liability against the defendant and the court entered judgment thereon. The defendant has not appealed.
Plaintiff first argues that the District Judge abused his discretion in permitting defendant’s counsel to ask him (Mason), on cross-examination, if he had ever been convicted of a felony in Virginia. The judge, who had been forewarned that defense counsel would ask such a question and that plaintiff’s counsel would object, prepared a written statement which he read to the jury after the question was asked and the plaintiff was required to answer. A portion of the record is reproduced below.
We find no abuse of discretion in permitting defense counsel to attack the credibility of the plaintiff by inquiring about an earlier felony conviction. Certainly, the credibility of the plaintiff was very much in issue because there were no eye witnesses and he was presenting his own version of the accident. The District Judge carefully pointed out to the jurors that a long period of years had elapsed since the conviction and that plaintiff had paid his debt to society for that violation of the law; the conviction was to be considered by the jury only as affecting the plaintiff’s credibility and was not to be used as a basis for penalizing him in the determination of damages. Goddard v. United States, 131 F.2d 220 (5th Cir. 1942), involved a criminal prosecution, but there a witness was questioned about a felony conviction some twelve years earlier. Appropriate in this case is the language of that court as follows:
“ * * * It is well settled that such evidence is admissible for purposes of impeachment, and whether the circumstance of the conviction was such that the fact ceased to have probative value was a question addressed to the sound discretion of the trial court. That discretion was not abused by the admission of this evidence.” 131 F.2d at 221.
Cf. Sinclair Refining Co. v. Southern Coast Corp., 195 F.2d 626 (5th Cir. 1952) ; Fire Ass’n of Philadelphia v. Weathered, 62 F.2d 78 (5th Cir. 1932). The fact that here the witness is a party to the litigation is immaterial. Where a party elects to make himself a witness he may be cross-examined as such. Simon v. United States, 123 F.2d 80, 85 (4th Cir.), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941).
Plaintiff next contends that the court erred in submitting to the jury the issue of plaintiff’s contributory negligence. We have read the entire record of the trial and we fail to find any evidence of contributory negligence on the part of plaintiff. During the course of the trial in response to questions propounded by his own counsel, Mason testified that on several occasions, from ten months to many years earlier, he had fainted while on duty as oiler in a ship’s engineroom. Mason explained the reason he had fainted on each occasion: Once he had influenza; on another occasion while his ship was operating in the tropics he was overcome by the heat in the engineroom; a third fainting spell was caused by food poisoning; once he was “lightheaded” because of the “grippe.” Plaintiff also introduced into evidence two small bottles of pills which had been prescribed for him by the United States Public Health Service Hospital for a nervous condition six months prior to the accident and which were found in his locker aboard ship after the accident. Mason testified that he had not taken any of the pills for the past several months preceding the accident. There was no evidence to indicate that Mason was taking the pills or was subject to their effect in any way just prior to the accident. Mason was cross-examined at length concerning these matters but the defendant was unable to show any specific connec-
tion between the earlier fainting spells and the pills, and the accident. Mason steadfastly denied that he fainted at the time of the accident. It was, to some extent, apparent that the defendant, by insinuation, would have the jury infer that a fainting spell caused the plaintiff to fall.
The District Judge carefully instructed the jury that all evidence as to the pills should be disregarded. However, the court charged the jury concerning contributory negligence and the effects of such negligence on its verdict if it should find that the plaintiff’s own negligence contributed to his injury. There was no attempt to call to the jury’s attention any evidence which might tend to prove contributory negligence, and our inspection of the record has failed to reveal any such evidence which the court might properly have told the jury to consider. It was clear to the court that the evidence did not disclose any relationship between the pills and accident and the jury was told, in effect, that it could not find that plaintiff’s injury was in part caused by taking the medicine which had been prescribed for him. There was no evidence tending to show even the remotest connection between the earlier fainting spells experienced by the plaintiff and his fall down the ship’s ladder. Nor was there evidence to link the accident with Mason’s sickness some five months earlier, diagnosed as “anxiety reaction,” a symptom of which, according to testimony may be faintness. After treatment in March 1958, Mason was declared fit for duty, and there is no evidence to show that he knew or had reason to believe that he was subject to fainting spells as a result of the illness experienced in the spring before the accident.
No witness testified that plaintiff failed to grasp the handrail which was provided for anyone using the ladder, or that he failed, in any respect, to take proper precaution to insure his own safety. Juries cannot be permitted to speculate on what might or could have happened without supporting evidence. Here defendant had the burden to prove by a preponderance of the evidence Mason’s contributory negligence. United States v. Smith, 220 F.2d 548 (5th Cir. 1955). No direct evidence was introduced to meet this burden. It cannot be reasonably argued that the physical facts involved in the fall could be accepted as evidence of Mason’s failure to grasp the handrails or take other precautionary measures. It is a matter of common experience that a person can slip on a stairway, due to extremely slippery conditions, with such force that his hands would be loosened from the rail. No inference to the contrary could properly have been drawn by the jury from the evidence in this record. Counsel for the plaintiff requested the court to charge the jury that there was no showing of any connection between the fainting spells and the accident and no evidence whatever of any negligence on the part of the plaintiff which contributed to his injuries. Instead, the charge was given concerning contributory negligence and the jury was permitted to speculate that in some way the plaintiff’s own negligence may have caused him to fall. We believe this was error which may have affected the amount of the verdict.
Defendant contends that if a new trial is awarded there must be a relitigation of the liability issue as well as the issue of damages. No authority is cited to support this contention. Rule 59(a), Federal Rules of Civil Procedure, 28 U.S.C.A., expressly provides for the granting of a new trial “on all or part of the issues * * * in an action in which there has been a trial by jury * * It is well settled that, in admiralty cases, contributory negligence may minify plaintiff’s damages but a finding of such negligence does not automatically defeat plaintiff’s claim of liability against the defendant for injuries resulting from unseaworthiness or negligence. The issues of liability and damages are clearly separable although this court has indicated cognizance of the fact that the size of the verdict may, in itself, indicate a jury compromise of the liability issue and a finding for plaintiff based primarily on sympathy. Mason here appeals from the finding of contributory negligence resulting in a verdict of challenged adequacy and the defendant has not appealed from the adverse determination of the liability issue. There was ample evidence to support the jury’s finding of defendant’s liability and nothing to point the finger of suspicion to the verdict on that issue as a compromise. Where the issues are separable and error is found in the trial of only one, a new trial may be had as to that issue alone where no injustice will result therefrom. Indamer Corp. v. Crandon, 217 F.2d 391 (5th Cir. 1954); Yates v. Dann, 11 F.R.D. 386 (D.Del. 1951); 6 Moore, Federal Practice, para. 59.06, p. 3759 ff. (1953); cf. Gasoline Products Co. v. Champlin Refining Co., 288 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931). Defendant’s liability having been determined, we are of the opinion that the plaintiff is entitled to a new trial on the sole issue of damages.
Reversed and remanded for new trial on damage issue alone.
. “(By Mr. McCoy) Mr. Mason, have you ever received a criminal conviction of a felony in Virginia?
“MB. KELSEY: If Your Honor please, this is very unfair. I want to make an objection to this.
“THE COURT: Now, let’s not make a speech. We have been over this before.
“MR. KELSEY: I raise my objection and ask the Court to instruct the jury about such a question.
“THE COURT: All right. Get your objection in first.
“MR. KELSEY: I object to the Court’s admitting any conviction of a felony in this case, the proposed or proffered offer to prove such a felony being almost twenty years ago, on the grounds that it has no probative value, it is immaterial and irrelevant in every way and, further, upon the objection and ground that his own watch officer has testified, and will testify in a deposition to be introduced in this case, that the man is an honest or truthful man, so far as he knows, and that something that happened twenty years ago has nothing whatsoever .to do with this case and I object to it.
“THE COURT: The objection is overruled. After you get the answer, though, I want to tell the jury something.
“MR. McCOY: I understand that. BY MR. McCOY:
“Q. I ask you the question, Mr. Mason, have you ever received a criminal conviction of a felony in Virginia?
“A. I have, and also—
“MR. KELSEY: Just a moment. You have, and that is all.
“THE COURT: Ladies and Gentlemen of the Jury, I would like to make a few comments with respect to that portion of this evidence. In a conference prior to the trial of this case, counsel for the defendant advised the Court and opposing counsel that they intended to introduce in the record the plaintiff’s prior conviction of a felony during the year 1939, I believe.
“Is that correct, Gentlemen?
“MR. McCOY: Yes, sir.
“MR. KELSEY: Yes, sir.
“THE COURT: It is a generally accepted rule that where a witness or a party litigant testifies in a case, evidence of a prior conviction of a felony involving moral turpitude may be considered by the jury in determining the credibility of the evidence of the party testifying. The Court has examined the conviction in question and it does involve a crime involving moral turpitude.
“MR. KELSEY: May we ask the Court to state what that conviction was?
“THE COURT: Yes, sir, if you want it. The conviction was for store breaking. It is solely for this purpose that this evidence is admissible. The person charged with a crime in 1939 has paid his debt to society and under no circumstances should you as jurors hold against him the fact that he may have erred or committed a crime approximately twenty years ago — in fact, now, I guess, almost twenty-one years ago — at a time when he was then approximately nineteen years old; you may, however, consider the fact of a prior conviction of a felony in determining the extent of the credibility of the plaintiff’s testimony as given by him from the witness stand. Of course, Ladies and Gentlemen, we are not concerned with the plaintiff’s credibility in 1939; what we want to ascertain is his worthiness of belief in the year 1960, that is, today as he testifies, and the fact that the conviction took place a little more than twenty years ago, at a time when the plaintiff was of a youthful age, may be considered by you in determining whether this prior conviction has any bearing upon Ms present credibility.
“Finally, may I say to you, if you ultimately conclude that this plaintiff is entitled to recover in this case, he should not be penalized one cent for the fact that he has previously been convicted for a crime in 1939.
“All right. You may proceed with the next question.”
. The testimony revealed that the tranquilizer drugs in the pills are known as “Reserpine” and “Belbarb.”
. It is explained that plaintiff’s counsel was aware of defendant’s knowledge of the fainting spells and the discovery of the pills; also, he had reason to believe that if the plaintiff failed to mention these facts on his direct examination, defense counsel would bring them out on cross-examination and thus create the false impression with the jury that the plaintiff was deliberately concealing information.
. See Schuerholz v. Roach, 58 F.2d 32 (4th Cir.), certiorari denied, 287 U.S. 623, 53 S.Ct. 78, 77 L.Ed. 541 (1932); Southern Ry. v. Madden, 224 F.2d 320 (4th Cir. 1955); Southern Ry. v. Madden, 235 F.2d 198 (4th Cir.), certiorari denied, 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244 (1956). See also as to separability of awards for compensatory and punitive damages Atlantic Coast Line R. R. v. Bennett, 251 F.2d 934 (4th Cir. 1958).
. On a retrial, proper evidence, if any, of plaintiff’s contributory negligence may be presented to the jury in mitigation of damages.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_appbus
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Brenda MALLOY and Nereida Gutierrez, on their own behalf and as parents and next friends of Curtis Malloy, Timothy Malloy and William Gutierrez, their minor children, and Carolyn Marsh and Esperanza Rodriquez, et al. v. Thomas EICHLER, in his official capacity as the Secretary of the Delaware Department of Health and Social Services, and Phyllis Hazel, in her official capacity as Director of the Department’s Division of Economic Services, et al. Appeal of SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES of the United States of America, in No. 88-3994. Maria ROSADO, Priscilla Golden, Angelica Saldana, Sharon Thomas, Norma Taylor, Nydia Cruz, each individually and on behalf of their respective plaintiff minor children and on behalf of all other persons in New Jersey similarly situated v. Otis R. BOWEN, Secretary of Health and Human Services, and Gregory S. Perselay, Acting Commissioner of the New Jersey Department of Human Services. Appeal of Otis R. BOWEN, Secretary of Health and Human Services, in No. 88-5149.
Nos. 88-3094, 88-5149.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit Rule 12(6) July 18, 1988.
Decided Oct. 25, 1988.
Beverley Dennis, III, Chief Counsel, Region III, James C. Newman, Supervisory Asst. Regional Counsel, Javier A. Arrastia, Asst. Regional Counsel, Dept, of Health & Human Services, Philadelphia, Pa., William C. Carpenter, U.S. Atty., Kent A. Jordan, Asst. U.S. Atty., D. Del., Wilmington, Del., Samuel A. Alito, Jr., U.S. Atty., Cornelia E. Dude, Asst. U.S. Atty., D. N.J., Newark, N.J., for appellant.
Harris David, Legal Services of New Jersey, New Brunswick, N.J., Richard Foard, Michaelene Loughlin, Essex-Newark Legal Services ACLU of New Jersey, Newark, N.J., Jack Fitzgerald, Warren County Legal Services, Belvidere, N.J., for appellees.
Before HIGGINBOTHAM, BECKER and ROSENN, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
This is a consolidated appeal from the judgments in two separate class actions, Malloy v. Eichler, 628 F.Supp. 582 (D.Del.1986), reprinted in Joint Appendix (hereinafter Jt.App.) at 6, and Rosado v. Bowen, 698 F.Supp. 1191 (D.N.J.1987), reprinted in Jt.App. at 56. Both plaintiff classes sought to enjoin the state and federal officials who administer the Medicaid program from using section 2640 of the Deficit Reduction Act of 1984 (“DEFRA”), 42 U.S.C. § 602(a)(38)) (Supp.1988) (hereinafter section 2640), an amendment to the AFDC statute, to determine eligibility for Medicaid coverage. The district courts granted these injunctions. We will affirm.
I.
In Malloy, plaintiffs filed a proposed class action against the Delaware state officials responsible for administering and for supervising the administration of the Medicaid program in Delaware [“Delaware state defendants”]. Plaintiffs asked the court to enjoin Delaware’s practice of terminating Medicaid benefits for Delaware children and their caretaker relatives who would have been eligible for AFDC but for section 2640 of DEFRA. The District Court granted the Delaware state defendants’ motion to add the Secretary as a necessary party defendant. The court then entered an order and a declaratory judgment holding that the Secretary’s “practice or policy of deeming the income of siblings or grandparents to individual Medicaid applicants or recipients pursuant to § 2640(a) of DEFRA... violates Medicaid law now codified at 42 U.S.C. § 1396a(a)(17) and the regulations promulgated thereunder.” Malloy v. Eichler, Judgment and Order Against the Federal Defendant, reprinted in Jt.App. at 48-50. Only the Secretary chose to appeal this judgment.
In Rosado, plaintiffs filed a proposed class action directly against the Secretary and against Geoffrey S. Perselay, the Acting Commissioner of the New Jersey Department of Human Services, as the officials responsible for administering the New Jersey AFDC and Medicaid programs. Unlike the plaintiffs in Malloy, plaintiffs in Rosado challenged the constitutionality of § 2640 of DEFRA as well as its application to Medicaid eligibility. The Supreme Court upheld the constitutionality of § 2640 in Bowen v. Gilliard, — U.S. -, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1). Accordingly, the District Court granted summary judgment to the Secretary on that issue. Rosado, reprinted in Jt.App. at 66-69, 88-89. However, the Rosado court agreed with the Malloy court that one of the Medicaid eligibility provisions, 42 U.S.C. § 1396a(a)(17)(D), specifically prohibited the use in the Medicaid context of section 2640’s assumption that the income of any child in the family was available to the whole household as income. Malloy, reprinted in Jt.App. at 83-86.
II.
The Medicaid program was established under Title XIX of the Social Security Act, 42 U.S.C.A. §§ 1396-1396s (Supp. 1). It is a cooperative program whereby the federal and state governments share the costs of medical treatment for needy individuals. States are not obligated to participate, but, if a state chooses to do so, it must comply with the federal requirements for the program. In return, it receives substantial federal matching funds.
Participating states must provide assistance to all individuals specified as “categorically needy.” 42 U.S.C. § 1396a(a)(10)(A). This group includes, among others, AFDC recipients, under Title IV-A of the Social Security Act, 42 U.S.C.A. § 601 et seq. However, persons who would be eligible for AFDC except for an eligibility requirement used in the AFDC program that is specifically prohibited under Medicaid have historically been eligible for Medicaid. 42 C.F.R. § 435.113 (1982). Medicaid eligibility is thus closely linked to, but not perfectly coextensive with, AFDC assistance. How coextensive is what is at issue in this case.
III.
The Secretary argues that Congress’ amendment of the AFDC program to treat sibling income as available to all members of a family receiving AFDC should control family income determinations for Medicaid eligibility as well. Understanding the Secretary’s contentions thus requires an understanding of the AFDC eligibility requirements. Like Medicaid, AFDC is funded cooperatively by the federal and state governments, with states administering the program locally and complying with federal requirements in return for federal funding. AFDC is available to dependent children in households where one parent is absent or is physically or mentally incapacitated.
A family applies for AFDC as a family “filing unit.” To qualify for assistance, a filing unit must meet specified standards of financial need. 42 U.S.C.A. § 606(a)(1). Prior to DEFRA, a family could apply as a filing unit for assistance without including all of its members in the filing unit. At that time, families routinely excluded children with significant incomes from the AFDC filing unit to avoid reducing a family’s overall eligibility for benefits. This practice had a legal basis. The normal sources of outside income for children in these households is court-ordered child support or Social Security payments received by a child on behalf of a deceased parent. Prior to DEFRA, caretaker relatives could not legally spend Social Security income to satisfy the needs of anyone except the beneficiary child, see Jt.App. at 122, 125, and state law often required a caretaker relative to use child support only to the benefit of the supported child, Bowen v. Gilliard, — U.S. -, 107 S.Ct. 3008, 3016 n. 14, 97 L.Ed.2d 485(1). Permitting families to exclude children with dedicated income from filing units recognized these legal strictures. A minor parent living with her own parents was also permitted to apply with her children) as a filing unit, omitting details of her own parents’ — the child(ren)’s grandparents’ — financial needs and resources.
Among other changes in AFDC eligibility requirements, Section 2640 of DEFRA amended § 402(a)(38) of the Social Security Act, 42 U.S.C. § 602(a)(38) (Supp.1988) to provide, in pertinent part:
“A State plan for aid and services to needy families with children must—
“(38) provide that in making the determination under paragraph (7) with respect to a dependent child and applying paragraph (8), the State agency shall (except as otherwise provided in this part) include—
“(A) any parent of such child, and
“(B) any brother or sister of such child, such brother or sister meets the conditions described in clauses (1) and (2) of section 606(a) of this title, if such parent, brother, or sister living in the same home as the defendent child and any income of or available for such parent, brother, or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 405(j) of this title, in the case benefits provided under subchapter II of this chapter)____”
State AFDC officials now automatically treat Social Security benefits or child support benefits received on behalf of one child, as well any grandparent income in three-generation households including a minor parent, as available to the whole family. As a result, many families no longer receive AFDC. Under the Secretary’s regulations, families whose total income makes them ineligible for AFDC benefits are also no longer eligible for Medicaid coverage.
The Secretary argues that his official interpretation of section 2640 — that its inclusion of sibling and grandparent income in an applicant’s resources extends to Medicaid eligibility decisions — was issued pursuant to Congress’s broad delegation of authority to him to determine the amount of income available to Medicaid applicants. Appellant’s Brief at 9-13. However, in our review, we must determine whether the Secretary properly construed the scope of his statutory authority in making his decision. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136(1). An administrator’s statutory authority does not extend to promulgating regulations or interpretations inconsistent with the statutes that he or she is charged with enforcing. See, e.g., Immigration & Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1217, 1223, 94 L.Ed.2d 434(1); Herweg v. Ray, 455 U.S. 265, 275, 102 S.Ct. 1059, 1066, 71 L.Ed.2d 137(1); Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1). The narrow issue in this case is whether the Secretary’s interpretation of section 2640 conflicts with the Medicaid statute. We hold that it does and that therefore the Secretary's interpretation exceeds the statutory authority delegated to him by Congress.
IY.
The Secretary argues that his interpretation of Medicaid eligibility is consistent with the intent of Congress. Specifically, he argues that his interpretation does not contradict 42 U.S.C. § 1396a(a)(17)(D) and, moreover, that it fulfills the requirements of 42 U.S.C. § 1396a(a)(17)(B). Accordingly, the Secretary argues that his construction of the Medicaid statute is entitled to “great deference.” Appellant’s Brief at 9.
The Secretary’s position has been uniformly rejected in the eighteen circuit and district courts which have considered it. See Georgia Department of Medical Assistance v. Bowen, 846 F.2d 708, 710 (11th Cir.1988) (collecting cases); see, e.g., Vance v. Hegstrom, 793 F.2d 1018, 1024 (9th Cir.1986) (“[i]n structuring a Medicaid filing unit by defining it in such a way as to include sibling income, the Secretary is doing... that which he is expressly precluded from doing by subsection (17)(D)”); Malloy v. Eichler, 628 F.Supp. 582, 598 (D.Del.1986) (“[t]he Secretary’s semantic contortions cannot transform this ‘deemed’ income into ‘available’ income nor can they protect a practice inconsistent with the mandate of subsection (17)(D)”); Rosado v. Bowen, reprinted in Jt.App. at 86 (“[t]he unambiguous language of § 1396a(a)(17)(D) specifically prohibits deeming a sibling’s income for determining Medicaid bene-fits____the impropriety of the Secretary’s interpretation is apparent”); Ward v. Wallace, 652 F.Supp. 301, 305 (M.D.Ala.1987), extended sub nom. Ward v. Hunt, 658 F.Supp. 441 (M.D.Ala.1987) (“[i]n his effort to support his interpretation on including sibling income, the Secretary makes interesting, but nonetheless tortured and merit-less, attempts to evade the Medicaid restrictions of subsections (17)(B) and (D)”). The Secretary argues that these eighteen prior decisions on this issue ignore relevant legislative history and “[t]he domino-like decisions of the other courts do not bear scrutiny.” Appellant’s Brief at 13.
The Secretary argues that the decisions in Rosado and Malloy are wrong as a matter of law, because his interpretation accords with the language of 42 U.S.C. § 1396a(a)(17)(B) and (D). He also argues that the absence of a mention of Medicaid in section 2640 creates a statutory ambiguity in section § 1396a, Appellant’s Reply Brief at 2; cf. 2-5, which can be clarified by consulting legislative history that, he argues, supports his interpretation of the statute. We are unpersuaded by both of these arguments. We hold that the language of 42 U.S.C. § 1396a(a)(17) is clear, unambiguous, and contrary to the Secretary’s interpretation. We also hold that the legislative history cited by the Secretary does not provide persuasive evidence that his interpretation effectuates Congressional intent, let alone the clear and manifest evidence of Congressional intent required to contravene clear statutory language.
V. The Relevance of Legislative History.
Where the language of the statute is clear, only “the most extraordinary showing of contrary intentions” justify altering the plain meaning of a statute. Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984); reh’g. denied, 469 U.S. 1230, 105 S.Ct. 1235, 84 L.Ed.2d 371 985). See also TV A v. Hill, 437 U.S. 153, 187 n. 33, 98 S.Ct. 2279, 2298 n. 33, 57 L.Ed.2d 117 (1978) (in dealing with unambiguous statutory language, judicial interpretation should stop with the words of the statute except in “ ‘rare and exceptional circumstances” ’) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)); Vance v. Hegstrom, 793 F.2d 1018, 1023 (9th Cir.1986) (“[t]he plain meaning of the words chosen by Congress is controlling in the absence of a clearly expressed legislative intent”). As we discuss below, 42 U.S. C. § 1396a(a)(17)(D) is unambiguous and expressly precludes the Secretary’s interpretation. Accordingly, we will address the Secretary’s legislative history arguments only to demonstrate that the Secretary has not produced the extraordinarily clear evidence of a contrary legislative intent that is required to override clear statutory language.
A. The Language of the Statute is Plain and Unambiguous.
The plain language of the statute states the Secretary may set standards for Medicaid eligibility provided that these standards
(B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and...
(D) do not take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual’s spouse or such individual’s child who is under age 21 or... is blind or permanently and totally disabled
42 U.S.C. § 1396a(a)(17). The House Committee explained the purpose behind these requirements:
Your committee believes it is proper to expect spouses to support each other and parents to be held accountable for the support of their minor children____ Such requirements for support may reasonably include the payment by such relative, if able, for medical care. Beyond such degree of relationship, however, requirements imposed are often destructive and harmful to the relationships among members of the family group.
H.R.Rep. No. 213, 89th Cong., 1st Sess. 68 (1965). Neither the plain language of the statute nor its legislative history suggests that this provision would nonetheless hold minor children accountable for the medical care of their half-siblings, or grandparents for their grandchildren’s care.
1. Sibling deeming.
The Secretary’s attempt to reconcile his interpretation with this statute is unconvincing. The Secretary argues that the effect of these provisions was fundamentally changed when Congress enacted section 602(a)(38). Appellant’s Brief at 22. As he puts it, “by mandatorily including siblings in the [AFDC] filing unit under § 602(a)(38), Congress made their income ‘available’ within the meaning of 42 U.S.C. § 1396a(a)(17)(B).” Id. at 9. The Secretary thus asserts that DEFRA should be read into the definition of “available” in the preceding statute: “Sibling income voluntarily contributed to the AFDC unit prior to 1984 would have been counted in determining... Medicaid eligibility. As a result of DEFRA, such voluntarism is no more, and this income must be counted for AFDC eligibility, and, the Secretary maintains, for a family unit’s derivative Medicaid eligibility.” Id. at 22.
A change in statutory language does not necessarily make money actually available to an applicant where it had not been before. If, as the Secretary argues, one child’s income is actually available to other family members for their medical care, it has become so as a result of assuming that that child’s resources are available to satisfy the needs of others; the family’s AFDC benefits and Medicaid coverage have been cut off as a result of counting the child’s Social Security benefits or child support check as family filing unit income. This attribution of one child’s income to the whole family has the effect of making that child financially accountable for the needs of his relatives — in violation of 42 U.S.C. § 1396a(a)(17)(D)’s requirement that relatives may be held accountable for the medical needs of others only within the spousal and parent-minor or -disabled child relationships.
2. Grandparent deeming.
Similar logic explains why grandparent deeming also conflicts with subsection (a)(17)(D) of the Medicaid statute. The Secretary has admitted that grandparent deeming from outside the assistance unit is contrary to (a)(17)(D) and so impermissible. Appellant’s Brief at 25-26. Since the plaintiff classes did not provide examples of Medicaid recipients or applicants denied Medicaid as a result of grandparent deeming, we will treat this as a party admission that grandparent deeming from outside the assistance unit is impermissible. However, grandparent deeming does occur under the Secretary’s interpretation of 42 U.S.C. § 602(a)(38), when a minor parent lives in the household with her own parents. Because she is a minor, her parent(s) must also apply for public assistance as part of the filing unit. The filing unit of minor parent and child thus includes the minor parent’s parent(s), the dependent child’s grandparent(s). The grandparent(s)’s income is considered available to the whole filing unit. To the extent that this renders the grandparents financially responsible for their own minor child, this method of determining eligibility is permissible under subsection (a)(17)(D). However, to the extent that the grandparents’ income is considered available to the entire filing unit, including the minor parent’s child, this methodology violates subsection (a)(17)(D). The grandparents are neither the spouse nor the parent of their own child’s child. As the Supreme Court recently stated in Schweiker v. Gray Panthers, 453 U.S. 34, 45, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981), “if there is to be content to subsection (17)(D)’s distinction between the responsibility of a spouse and that of a more distant relative, the subsection must envision that States can deem the income of the former but not of the latter.”
The plain meaning of the statute discussed above is particularly likely to express Congressional intent since Congress might have chosen to treat sibling income as part of a common pool in the AFDC context, but not with regard to Medicaid, because of the sharply different nature of the needs served by each program. Food, heat and shelter costs, the stuff of ADFC, are more communal goods than is medical care. A gallon of milk is cheaper per glass than a quart; up to a point, dollars spent on rent can shelter one child or several. Medical care, by contrast, is an individual good: a doctor’s visit, an injection of penicillin, can only cure one patient. Thus, given Congress’s clear expression of its intent that income should not be presumed available to others in the Medicaid context outside the parent-child and spousal relationships, and the significantly different nature of the goods and services involved, the Secretary’s argument that Congress’s expression of its intent in the AFDC context means that “the rules changed” for Medicaid is unconvincing.
B. The Secretary’s Arguments That the Statute is Ambiguous.
The Secretary’s argument that subsection (17)(D) is ambiguous rests on his misleadingly erroneous characterization of the relation of Medicaid eligibility as determined by or “derivative” of AFDC eligibility. Appellant’s Brief at 15-16, 22. Because, the Secretary argues, Medicaid eligibility is derivative of AFDC eligibility, “the lack of explicit reference to Medicaid and the general, long-established linkage between Medicaid and AFDC eligibility are sufficient to create the statutory obscurity or ambiguity denied by appellees in their repeated insistence on the alleged plain meaning of the statute as a sufficient guide to interpretation.” Appellant’s Reply Brief at 2, cf. 2-5. This argument rests on a confused appreciation both of the relationship between Medicaid and AFDC eligibility requirements and of the principles of statutory construction. We will address each of these problems in turn.
1. The Relationship Between AFDC and Medicaid Eligibility.
Medicaid eligibility is not “derivative” of, or perfectly coextensive with, AFDC eligibility — as the Secretary’s own regulation shows. The Secretary has promulgated a regulation stating that “[t]he agency must provide Medicaid to individuals who would be eligible for AFDC except for an eligibility requirement used for that program that is specifically prohibited under Title 19 [the title of the Social Security Act concerning Medicaid].” 42 C.F.R. 435.113 (1982). Since DEFRA, sibling deeming is such an eligibility requirement — permissible under AFDC law, explicitly forbidden by Title XIX. The very existence of the Secretary’s own regulation acknowledges that AFDC eligibility requirements do not define eligibility for Medicaid. Moreover, in December 1987, as part of the Omnibus Budget Reconciliation Act, Congress enacted legislation providing Medicaid coverage for pregnant women and some children. This legislation explicitly provides that AFDC eligibility requirements shall not apply to determine the eligibility for this program. In discussing this legislation, the House Budget Committee observed that
[The] AFDC [program features] policies [which] are referred to as stepparent, grandparent and sibling ‘deeming,’ respectively, because the income of these family members is conclusively presumed to be available to the child____ These AFDC stepparent, grandparent and sibling deeming rules do not apply, and have never applied, to determinations of eligibility for Medicaid, however. Medicaid law and regulation have long limited ‘deeming,’ or the attribution of financial responsibility of other family members, to two specific circumstances: spouses are responsible to their spouses, and parents are responsible to their minor children____ The two Federal Circuit Courts of Appeals and the 8 Federal District Courts that have ruled on this issue to date have all concluded, quite correctly, that [the Secretary] is in error.
H.R.Rep. No. 391, 100th Cong., 1st Sess. 446-47, reprinted in 1987 U.S.Code Cong. & Admin.News 2313-1, 2313-266, 2313-267. Whatever the value of these statements as evidence of the correctness of the other court decisions, the Committee’s observations, and the program that it interprets, do indicate that Medicaid eligibility requirements at least in some instances differ from those for AFDC.
2. The Meaning of Silence in Statutory Interpretation.
As noted above, based on his erroneous argument that AFDC eligibility requirements always determine those of Medicaid, the Secretary also argues that Congress’s failure to mention Medicaid in an amendment to the AFDC statute creates a statutory ambiguity. Congressional silence does not connote ambiguity in this case. The relevant maxim of statutory construction is expressio unius exclusio alterius, that is, “the expression of one thing is the exclusion of another,” and may imply an intent to exclude all others. Therefore, if Congress chose explicitly to amend the AFDC requirements, the appropriate inference is that it chose to amend only those, not others. Moreover, the position for which that the Secretary argues amounts to sub silentio repeal of subsection (17)(D)’s prohibition on deeming outside the spousal and parent-minor child relationships. We must assume that Congress was aware of subsection (17)(D) when it enacted the AFDC amendments, see Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979), but chose not to repeal or amend it. Repeals by implication are not favored. The “intention of the legislature to repeal must be ‘clear and manifest’.” Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981) (citations omitted). As the survey of the legislative history, below will show, Congress has not manifested an intent to repeal or amend subsection 17(D). We find the Secretary’s argument that section 2640 is ambiguous because it does not mention Medicaid to be wholly without merit.
VI. The Legislative History Cited By the Secretary.
Since subsection (17)(D) is clear and unambiguous, we analyze the legislative history adduced by the Secretary solely for the “extraordinary evidence of contrary intentions” necessary to support an interpretation contrary to the plain language of the statute. The legislative history stressed by the Secretary consists principally of nonspecific references to Medicaid savings, several of them from the legislative histories of other statutes, and a general observation that Congress enacted DEFRA as part of an attempt to reduce the federal budget deficit. Contrary to the Secretary’s assertion that courts have ignored these references, several courts have considered them, but found them unpersuasive. See, e.g., Vance v. Hegstrom, 793 F.2d 1018, 1024-25 (9th Cir.1986); Olson v. Norman, 830 F.2d 811, 817-18 (8th Cir.1987); Malloy v. Eichler, 628 F.Supp. 582, 594-95, 596-97 (D.Del.1986); Rosado v. Bowen, Civ. No. 86-1716, Jt.App. at 83 (D.N.J. Oct. 22, 1987). So do we.
Even the Secretary’s “best” legislative argument rests on a strained interpretation of the statute involved. The Secretary invokes Congress’s 1984 amendments to the CSEA to “demonstrate that Congress assumed families losing AFDC eligibility due to the counting of sibling income would lose Medicaid as well. 42 U.S.C. § 606(h).” Appellant’s Brief, at 16 (emphasis added). Section 606(h) does provide a four month grace period of continued Medicaid coverage for former AFDC recipients who have also lost their eligibility for Medicaid due to child support collections. But the source of their loss in this case is the receipt of child support, which does not necessarily imply sibling deeming. It is only where the household consists of two or more children who are half-siblings, and only one absent parent is paying child support, that the collection of support for one child causes another child to lose AFDC benefits and, under the Secretary’s erroneous interpretation, Medicaid coverage. Where a family consists, as all families do at their inception, of the parent(s) and the first child, the receipt of that child’s support payments will automatically, if the amount of the support is large enough, move the household off both the AFDC and the Medicaid rolls — without involving sibling deeming. Similarly, in a family of two or more children where all the children are of one parentage, or where each child is receiving support, each child could begin to receive child support as a result of the federal collection program without any child’s income being imputed to her sibling. Congress could wish to alleviate the difficulties of these common situations without implying that the Secretary should amend the Medicaid statute sub silentio to permit sibling deeming.
The language of the House Conference Report that the Secretary quotes is consistent with the interpretation that we have outlined above. The report simply states that “[w]hen a family loses eligibility for AFDC as the result of child support collections, it also loses categorical eligibility for medicaid____ the States must continue to provide medicaid benefits for 4 calendar months____” H.R.Conf.Rep. No. 925, 98th Cong., 2d Sess. 55, reprinted in 1984 U.S. Code Cong. & Admin.News 2397, 2447, 2473. Nowhere does this language explicitly state that the consequence of receiving child support for one child is the loss of Medicaid coverage for others. Congress need not have had this problem in mind. As discussed above, the Medicaid statute specifically prohibits considering the income of a sibling available to an applicant, whereas it does not prohibit the consideration of a parent’s resources, represented by the support sent specifically for the child-applicant in question, in evaluating an applicant’s eligibility. Since a child therefore may lose Medicaid coverage when he or she receives child support from his or her own parent, but not when a half-sibling receives it from the parent that the two children do not share, Congress had no need either to discuss or to remedy this nonexistent problem.
The Secretary next points to vague and confusing references to Medicaid savings in estimates of the fiscal impact of AFDC legislation. Firstly, the Senate Finance Committee noted that the Administration is proposing “several changes” in AFDC. They predicted that “[s]ince Medicaid eligibility is linked to eligibility for AFDC, Medicaid savings are also anticipated.” Staff of Senate Comm, on Finance 98th Cong., 2d Sess., Staff Data and Materials for the Fiscal Year 1985, Finance Committee Report Under the Congressional Budget Act 61 (Comm.Print 1984). It is unclear which of the several proposals the Finance Committee intended. For example, one of the AFDC proposals would have made minor parents ineligible for AFDC unless they resided with their own parents), or unless their parents were dead or would jeopardize the health and safety of the minor or her children). The prior practice had permitted any minor parent to apply for AFDC on behalf of her child regardless of where she was living. The new practice would reduce the number of AFDC recipients, assuming that some minor parents continue to be unwilling to live with their own parents and so lose AFDC eligibility. Loss of AFDC eligibility means loss of Medicaid eligibility in many states, unless the AFDC loss is the consequence of an eligibility requirement like sibling deeming specifically forbidden under the Medicaid program. By contrast, requirements that parents support and provide medical care for their minor children (though not their grandchildren) are explicitly permissible under the Medicaid statute. 42 U.S.C. 1396a(a)(17)(D). Thus, this different provision, one of the several, would almost certainly produce Medicaid savings. Since the Senate Finance Committee did not specify which proposal it had in mind, or how exactly the savings would occur, this reference to savings is only ambiguous evidence that the Senate expected the change in the AFDC eligibility requirements to produce Medicaid savings.
The
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
I. C. SUTTON HANDLE FACTORY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 15942.
United States Court of Appeals Eighth Circuit.
June 11, 1958.
Rehearing Denied July 28, 1958.
Robert W. Cummins, Harrison, Ark., for petitioner.
Frederick U. Reel, Attorney, National Labor Relations Board, Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Assoc. Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., were with him on the brief), for respondent.
Before SANBORN, VOGEL and MATTHES, Circuit Judges.
SANBORN, Circuit Judge.
I. C. Sutton, Sr., doing business as I. C. Sutton Handle Factory, at Harrison, Arkansas, has petitioned this Court for the review and reversal of an order of the National Labor Relations Board, the practical effect of which is (1) to disable the petitioner from interfering in any way with the union affiliations and activities of his employees; (2) to require the reinstatement, with back pay, of Joe Hulsey, found by the Board to have been discriminatorily discharged; and (3) to post the usual notices.
The petitioner asserts that there was no adequate evidentiary basis for the Board’s findings and order. This the Board denies, and it asks that the order under review be enforced.
There is nothing unusual about this controversy. It falls within a familiar pattern, growing, as it does, out of things that were done and things that were said during a campaign started in the spring of 1956 by the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746, to organize the employees of the petitioner, among whom Joe Hulsey was the most active union advocate and proponent.
A detailed discussion of the evidence, with which the parties are entirely familiar and which can be of little interest to others, is unnecessary. It is enough to say that there was substantial evidence before the Board from which, in our opinion, it reasonably could infer that the petitioner was opposed to the unionization of his employee; that his supervisors at the plant asked questions of, and made remarks to, the employees, during the campaign, which were calculated to discourage and deter them from becoming members of the union; and that, at the very height of the union campaign, Joe Hulsey, on October 24, 1956, the day after he had mailed to the union a number of applications by employees for membership in the union, was discharged.
It is obvious to us that the questions whether the petitioner had, by interrogation, threats or otherwise, in violation of Section 8(a) (1) of the National Labor Relations Act as amended (61 Stat. 136, 29 U.S.C.A. § 151 et seq.), interfered with the rights of his employees to do as they pleased about joining or not joining the union, and whether, in violation of Section 8(a) (3) and (1) of the Act, the petitioner had discharged Joe Hulsey because of his union activities, were questions of fact for the Board, and are not questions of law for this Court.
The contention of the petitioner is that because his testimony that Hulsey was discharged “for visiting and interfering with others’ work” was uneontradicted, the Board was precluded from finding that Hulsey’s discharge was motivated by his union activities. The record shows that Hulsey had been employed by the petitioner for more than three years, and that during that time no complaints had been made about his work. We are satisfied that, from the circumstances surrounding Hulsey’s discharge, the Board reasonably could infer that his separation from his employment just as the crucial stage in the campaign of the union to organize the petitioner’s plant had been reached, was the proximate result of his union activities. The Board, as the trier of the facts, was not compelled to accept at its face value the testimony of the petitioner, a highly interested witness, even though it was uncontradicted. See and compare Noland v. Buffalo Insurance Co., 8 Cir., 181 F.2d 735, 738 and cases cited. The law applicable to cases such as this has been repeatedly stated in the decisions of this Court and of Courts of Appeals of the other Circuits. This case differs in no controlling respects from National Labor Relations Board v. Minnesota Mining & Manufacturing Co., 8 Cir., 179 F.2d 323; Coca-Cola Bottling Co. of St. Louis v. National Labor Relations Board, 8 Cir., 195 F.2d 955, and National Labor Relations Board v. Cold Spring Granite Co., 8 Cir., 208 F.2d 163.
We find nothing in the record which would justify a reversal of the order under review or a refusal by this Court to enforce it.
The request of the Board for the enforcement of its order is granted.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appfed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ARROW DRILLING COMPANY, Appellant, v. Richard T. BROOKS and Bituminous Casualty Corporation, Appellee.
No. 19299.
United States Court of Appeals Fifth Circuit.
May 25, 1962.
Otto Atchley, Victor Hlavinka, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Tex., for appellant.
Franklin Jones, Sr., Marshall, Tex., L. L. Lockard, Shreveport, La., Larry Oubre, Dallas, Tex., Franklin Jones, Jr., Marshall, Tex. (Jones, Brian & Jones, Marshall, Tex., of counsel), for appellees.
Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.
PER CURIAM.
This is an appeal from a verdict and judgment for plaintiff in a suit for personal injuries received in Texas by appellee, as the employee of Griggs Casing Crews Co., Inc., a sub-contractor of appellant, the drilling contractor.
The grounds of negligence alleged were: (1) furnishing unsafe equipment used in the work performed by the Griggs crew; (2) employing a method of work which was unsafe; and (3) arranging the derrick and its appurtenances so as to cause a condition of danger and hazard.
In addition to these specific allegations of negligence, there was a general claim of negligence based upon res ipsa loquitur.
The defendant denied generally and pleaded contributory negligence and voluntary assumption of risk. In addition to these defenses, the defendant relied below and relies here upon two affirmative defenses styled First Defense-A and First Defense-B. These defenses in effect were a plea of res judicata based upon a judgment for compensation obtained by appellee in Louisiana and under its laws against Griggs Casing Crews, Inc. and its compensation carrier in Louisiana, and the claim that under Louisiana Workmen’s Compensation laws it was a statutory employer of appellee, liable solidarily with Griggs Casing Crews, Inc. for injuries suffered by plaintiff; and the compensation judgment was a bar to this suit against defendant.
The district judge, on a full hearing, struck these defenses on the ground that there was no final judgment in the Louisiana case. The cause was submitted to the jury, a verdict for plaintiff resulting; and defendant is here attacking the submission of the cause to the jury and the verdict as unsupported by the evidence, and, in addition, insisting: that defendant’s defenses A and B should have been sustained, and a verdict for defendant should have been directed on the defense of voluntary assumption of risk.
Appellee vigorously contests defendant’s claim on its special defenses A & B on the ground (1) that the district judge correctly held that the judgment in Louisiana disposing of plaintiff’s workmen’s compensation insurance was not shown to be a final judgment; and (2) that in no event could the Louisiana judgment for workmen’s compensation insurance deprive appellee-plaintiff of his right to bring a third party action for damages in Texas under the express authority of its compensation act. Appellee further insists that there was ample testimony to sustain the jury’s finding in favor of plaintiff-appellee on the assumed risk issue and the defendant’s motion for directed verdict was therefore properly denied.
The special defenses aside, we think it clear that the case was one for a jury verdict and that the defendant’s insistence that a verdict for defendant should have been directed on the ground that plaintiff, as matter of law, assumed the risk of injury is without sound basis. The issue was submitted to the jury on evidence which made it a jury issue, and the jury found for plaintiff.
As to the special defenses, based on the compensation award in Louisiana, we agree with appellee and the district judge that when the plea of estoppel and res judicata was disposed of by the judge, there was no final judgment in the cause, and the district judge was, therefore, right in rejecting the special defenses. We, therefore, find it unnecessary to inquire into and determine whether, as urged by defendant, if there had been a final judgment in the compensation suit, it would have been a bar to the Texas action.
The judgment is
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Myra Holladay SIMS and Florida Import and Compliance Association, Plaintiffs-Appellees, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Defendant-Appellant.
No. 86-3055.
United States Court of Appeals, Eleventh Circuit.
Dec. 2, 1987.
Eric J. Taylor, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for defendant-appellant.
William C. Owen, Carlton, Fields, Ward, Emmanuel, George N. Meros, Tallahassee, Fla., amicus: Fla. Auto. Dealers Ass’n.
Susan Greco Tuttle, Moffitt, Hart & Miller, Tampa, Fla., amicus: Import Auto. Dealers of Florida, Inc.
Edward T. O’Donnell, Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., amicus: Mercedes-Benz of North America, Inc.
Robert P. Smith, Jr., Tallahassee, Fla., for plaintiffs-appellees.
Before TJOFLAT and HATCHETT, Circuit Judges, and EATON, District Judge.
Honorable Joe Eaton, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
HATCHETT, Circuit Judge.
The State of Florida, and the Department of Highway Safety and Motor Vehicles, appeal from the district court’s declaration that Florida Statute § 320.02(9) is unconstitutional because it is preempted under the supremacy clause and violates the commerce clause of the United States Constitution. We affirm in part and remand.
FACTS
On April 30, 1985, Myra Holladay Sims imported from Europe an automobile popularly known as a “gray market” automobile. “Gray market” automobiles are imported automobiles which are not designed or manufactured to comply with United States emissions and safety standards. Florida Import and Compliance Association (FICA) is a trade association whose members are directly involved in the importation of gray market automobiles.
Two federal statutes govern the importation of foreign manufactured automobiles into the United States. The Clean Air Act, 42 U.S.C. § 7522, and the Safety Act, 15 U.S.C. § 1397, bar the importation of motor vehicles that do not comply with the applicable federal emissions and safety standards. Specifically, the Clean Air Act prohibits
the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, or (in the case of any person, except as provided by regulation of the Administrator), the importation into the United States, of any new motor vehicle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regulations prescribed [by this statute].
42 U.S.C. § 7522(a)(1). Also, under section 7522(b)(2), the statute provides that
[t]he Secretary of the Treasury and the Administrator [of the Environmental Protection Agency (EPA) ] may, by joint regulation provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by such Secretary, within ninety days of the date of notice of such refusal or such additional time as may be permitted pursuant to such regulations, except that disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate customer, of a new motor vehicle or new motor vehicle engine that fails to comply with applicable standards of the Administrator under this part.
Similarly, the Safety Act provides that “[n]o person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle [unless it is in conformity with applicable federal motor vehicle safety standards].” 15 U.S.C. § 1397(a)(1)(A). In addition, that statute provides as follows:
[T]he Secretary of the Treasury and the Secretary [of the National Highway Transportation Safety Administration, Department of Transportation (DOT)] may, by... regulations, provide for authorizing the importation of such motor vehicle or item of motor vehicle equipment into the United States upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or item of motor vehicle equipment will be brought into conformity with any applicable federal motor vehicle safety standard prescribed under this subchapter, or will be exported or abandoned to the United States.
15 U.S.C. § 1397(b)(3).
Despite general prohibitions against the importation of nonconforming motor vehicles into the United States, Congress, under the above provisions, authorized the importation of gray market vehicles upon the furnishing of a bond or other means of assuring that federal environmental and safety laws are not unlawfully circumvented. The EPA, the DOT, and the Treasury Department promulgated regulations governing the importation of gray market vehicles. See generally 19 C.F.R. §§ 12.73, 12.80; 40 C.F.R. Part 85, Subpart P and 49 C.F.R. Part 571. Under these regulations, a gray market vehicle is conditionally admitted into the United States for the limited purpose of enabling the importer to comply with federal emissions and safety laws. The importer must post an entry bond with the United States Customs Service (Customs) for an amount equal to the value of the vehicle plus the customs duty. See Automobile Importers Compliance Association, Handbook of Vehicle Importation, 21 (1984). In addition, the importer must sign a statement indicating that the motor vehicle “is not covered by a certificate of conformity with federal motor vehicle emission standards but will be brought into conformity with such standards.” 19 C.F.R. § 12.73(b)(5)(x) (1986). Finally, the importer must declare that the vehicle “was not manufactured in conformity [with] all applicable safety standards, but it has been or will be brought into conformity.” 19 C.F.R. § 12.80(b)(l)(iii). The entry bond serves as a means to enforce the importer’s obligation to comply with the requirements of federal emission and safety standards. Thus, Customs will not release the bond until it receives assurance from the EPA and the DOT that the importer has complied with the standards. See 19 C.F.R. §§ 12.73c and 12.80e.
When Sim’s automobile arrived at port in Jacksonville, Florida, she complied with all of the applicable federal regulations governing the importation of gray market automobiles, which included posting a bond in the requisite amount. Sims was exempt from conforming her automobile to the applicable federal emission standards and received a letter from the EPA releasing the EPA obligation on the bond. In complying with the Safety Act and the DOT regulations, Sims completed the requirements under 19 C.F.R. § 12.80(b)(l)(iii).
In 1984, the Florida legislature passed the following statute concerning automobile titling and registration:
Before a motor vehicle which has not been manufactured in accordance with the federal Clean Air Act and the federal Motor Vehicle Safety Act can be sold to a consumer and titled and registered in this state, the motor vehicle must be certified by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compliance with these federal standards. A vehicle which is registered pursuant to this subsection shall not be titled as a new motor vehicle.
Act approved June 11, 1984, ch. 84-155, § 3, 1984 Fla.Laws 457, 458 (codified as amended at Fla.Stat. § 320.02(9) (1985)). This provision prevents the owner of a gray market vehicle from acquiring title and vehicle registration in Florida until the owner has obtained the required documentation from the federal government.
Subsequent to the passage of Fla.Stat. § 320.02(9), Sims unsuccessfully sought to title and register her automobile at the Florida Department of Highway Safety and Motor Vehicles (DMV). The DMV refused to title and register Sims’s automobile because she did not produce release letters from the DOT and Customs certifying compliance with federal standards. Sims had not received a bond release letter from the DOT because of the excessive number of forms the DOT had to review.
Following refusal to title and register the automobile, Sims and the FICA filed suit in United States District Court for the Northern District of Florida alleging that the state’s enforcement of section 320.02(9) violated the supremacy and commerce clauses of the United States Constitution: (1) the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards, and (2) enforcement of section 320.02(9) places an impermissible burden on foreign and interstate commerce. The district court concluded that the Clean Air Act and Safety Act preempt the state’s authority to enforce section 320.02(9) and that enforcement of the statute would violate the commerce clause. The district court declared section 320.02(9) unconstitutional and enjoined its enforcement. The state brings this appeal from the district court’s ruling.
On September 29, 1986, we heard oral arguments addressing whether Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution. On February 18, 1987, we requested “all counsel of record” to submit supplemental briefs addressing (1) standing, (2) Florida’s sovereign immunity under the eleventh amendment, and (3) mootness. The parties complied with our request.
DISCUSSION
A. Standing
The state of Florida alleges that Sims and the FICA lack standing to challenge the constitutionality of Fla.Stat. § 320.02(9) because they have failed to show (1) a judicially cognizable injury traceable to the enforcement of the statute, and (2) the likelihood of redress if the Florida statute is declared preempted or in violation of the commerce clause. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In order to satisfy the requirements of standing, a plaintiff must allege a personal injury fairly traceable to the challenged conduct and a likelihood of redress by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
Sims and the FICA allege that the state’s enforcement of Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution because it prevents the owner of a “gray market” vehicle from acquiring title and registration in Florida prior to release of the entry bond and final admission of the vehicle into the United States.
We note that whether the appellees have sufficiently alleged standing is not determined by the likelihood that they will prove what has been alleged. The Supreme Court’s ruling in Warth, 422 U.S. at 501, 95 S.Ct. at 2206, requires the courts to “accept as true all material allegations of the complaint, and... construe the complaint in favor of the complaining party.” See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In satisfying the initial requirement under the Article III doctrine relating to standing—an allegation of “a distinct and palpable injury,” Warth, 422 U.S. at 501, 95 S.Ct. at 2206. Sims and the FICA’s complaints allege that the state’s enforcement of section 320.02(9) unlawfully prevents the titling and registering of gray market vehicles in Florida. In assuming, as we must, the truth of the allegations, the state’s unlawful refusal to issue titles and registrations to owners of gray market vehicles constitutes a distinct, palpable, and personal injury to Sims and the FICA.
Also, Sims’s and the FICA’s complaints contain assertions sufficient to establish the second requirement necessary to show standing—the likelihood of redress by the requested relief. Absent the state’s enforcement of section 320.02(9), Sims and other owners of gray market vehicles would immediately have their vehicles titled and registered in Florida. Federal statutes do not prohibit the titling and registering of gray market vehicles prior to final admission; similarly, the DOT does not prohibit the operation of gray market vehicles on public highways prior to the issuance of a release letter Only the EPA, under Title 40 C.F.R. § 85.1507 (1985), requires that gray market vehicles “be stored and... not... operated on the public highways [prior to] final admission.” The state’s argument is that since Sims and other owners of gray market vehicles are prohibited by section 85.1507 from operating such vehicles on the state roads until final admission is granted, they have no reason to seek titling and the registration of these vehicles. Such a contention amounts to mere speculation as to the owner’s need for, or the reason for which the owner seeks titling and registration. Moreover, Fla.Stat. § 320.02(1) does not prohibit the registration of vehicles that are not operated on Florida roads. We cannot conclude that titling and registration of a gray market vehicle are necessary only for the operation or sale of the automobile. In this case, we also find that Sims and the FICA have sufficiently alleged a distinct, palpable, and personal injury in the state’s enforcement of Fla.Stat. § 320.02(1). “There is [a] casual connection between the asserted injury and the conduct being challenged.” Allen v. Wright, 468 U.S. 737, 770, 104 S.Ct. 3315, 3334, 82 L.Ed.2d 556 (1984) (noting Simmon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976)). We hold that this lawsuit presents a “case or controversy” as required by article III of the United States Constitution and does not constitute a “hypothetical case.” Sims and FICA have standing to bring this lawsuit.
B. Preemption
Sims and the FICA successfully challenged the constitutionality of Fla.Stat. § 320.02(9) in the district court. The district court held that the Clean Air Act and Safety Act preempt the state’s authority to require compliance with federal emission and safety standards. Federal preemption of state law is derived from the supremacy clause of article IV, clause 2 of the United States Constitution, which reads as follows:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
The Supreme Court in Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984) stated the three ways in which federal law may preempt state law.
Federal law may preempt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. [Citation omitted.] Second, even in the absence of express preemptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the states must leave all regulatory activity in that area to the federal government. [Citations omitted.] Finally, if Congress has not displaced state regulation entirely, it may nonetheless preempt state law to the extent that the state law actually conflicts with federal law.
Michigan Canners, 467 U.S. at 469, 104 S.Ct. at 2523.
In Howard v. Uniroyal, Inc., 719 F.2d 1552, 1555 (11th Cir.1983), we “acknowledge[d] the well established principle that the touchstone of preemption analysis is congressional intent....” Additionally, “[t]he intent of Congress to pre-empt a state law may be either express or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Howard, 719 F.2d at 1556 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).
The Clean Air Act contains the following preemptive provision regarding state enforcement of federal emission standards:
No state or any political subdivision thereof shall adopt of attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicles engines subject to [the vehicle emission standards of the Clean Air Act]. No state shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
42 U.S.C. § 7543(a). The express language in section 7543(a) indicates Congress's intent to exclusively regulate the control of emissions from new motor vehicles prior to the initial sale. See Michigan Canners, 467 U.S. 461, 104 S.Ct. 2518.
The state contends that Fla.Stat. § 320.02(9) simply ensures that new automobiles coming onto Florida’s highways comply with the Clean Air Act; it does not establish new or conflicting emission standards. Although this contention may be based on proper and wholesome intentions, nevertheless, Congress specifically stated that “[n]o state... shall adopt or attempt to enforce any [federal or state] standard relating to the control of emissions from new motor vehicles” prior to the initial sale. 42 U.S.C. § 7543(a) (emphasis added). Thus, we agree with the district court’s ruling and hold that “[enforcement of the Clean Air Act before [the] first sale [of new motor vehicles] is the sole and exclusive prerogative of the federal government.”
The Safety Act likewise contains a preemptive provision which reads in part as follows:
Whenever a federal motor vehicle safety standard established under this subchap-ter is in effect, no state or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the federal standard.
15 U.S.C. § 1392(d). Unlike the preemptive provision contained in the Clean Air Act, 15 U.S.C. § 1392(d) precludes states from enforcement of safety standards only when such standards are not identical to federal standards.
The district court held that prior to the first sale ¡of a motor vehicle, “[t]he states are absolutely barred from acting in any manner whatsoever in” enforcing federal safety standards and that “the role of the states in enforcing the federal laws and regulations is confined solely to the period after the first sale of an automobile.” We disagree.
Section 1392(d) does not expressly preclude states from requiring proof of compliance with federal safety standards before obtaining title and registration for gray market automobiles. In Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 714, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714, 722 (1985), the United States Supreme Court stated that “[t]he question whether the regulation of an entire field has been reserved by the federal government is, essentially, a question of ascertaining the intent underlying the federal scheme.” Congress enacted the Motor Vehicle Safety Act to establish uniform federal safety standards. See H.R. 1776, 89th Cong., 2d Sess. 17 (1966), U.S.Code Cong. & Admin.News 1966, p. 2709. Section 1392(d), as originally enacted, restricted federal enforcement of safety standards to the initial sale of new vehicles and permitted state enforcement of safety standards identical to corresponding federal standards after the first sale of new vehicles. S.Rep. No. 1301, 89th Cong., 2d Sess., reprinted in 1966 U.S.Cong. & Admin.News 2709, 2720.
Also, the District Court for the Middle District of Pennsylvania in Truck Safety Equipment Institute v. Kane, 466 F.Supp. 1242 (M.D.Pa.1979), held that state safety standards identical to federal standards were preempted because the intent of Congress was to preclude states from presale enforcement of federal safety standards. The court in Kane, however, noted that the standards derived under the Pennsylvania system required independent testing and the payment of fees to cover the cost of such testing. Kane, 466 F.Supp. at 1245-46. Unlike the Pennsylvania regulations examined in Kane, Fla.Stat. § 320.02(9) does not impose additional requirements on the importer of a gray market vehicle than those imposed by the applicable federal standards.
In 1982, the National Highway Traffic Safety Administration (NHTSA) issued an opinion in an attempt to interpret the extent to which section 1392(d) preempted state enforcement of federal safety standards. Federal Motor Vehicle Safety Standards: Interpretation Regarding Preemption and Presale State Enforcement of Safety Standards, 47 Fed.Reg. 884 (Advisory Letter) (1982). In its interpretation, the NHTSA stated:
[I]t is the position of the NHTSA that any state requirement which necessitates that manufacturers pay fees in order to obtain approval under a state standard identical to an FMVSS [Federal Motor Vehicle Safety Standard], and any imposition of requirements for approval which has the effect of prescribing the sale of equipment certified under the Act to a standard such as FMVSS 218 would be preempted by operation of the Act and of the agency’s action in adopting the federal standard in question.
47 Fed.Reg. at 885.
Recently, the Fifth Circuit in Direct Automobile Importers Association, Inc. v. Townsley, 804 F.2d 1408 (5th Cir.1986), examined a Texas statute similar in language to Fla.Stat. § 320.02(9) and stated:
H.B. 1805 places no burden on the manufacturer, which was clearly the concern behind the interpretation. H.B. 1805 does not involve the payment of any fees, nor does it have the effect of prescribing the sale of federally certified equipment. Indeed, H.B. 1805 does not require any certification except federal certification by federal authorities. As best we can tell, the original pre-1982 amendment provision was enacted to assure uniformity of standards for manufacturers so vehicles and equipment meeting the federal standards could be sold freely in any state. See remarks of Senator Magnu-son (one of the NHTSA’s sponsors), 112 Cong.Ree. S14230 (daily ed. June 14, 1966) (remarks of Senator Magnuson). The Texas statute H.B. 1805, does not impair this objective since it creates no independent state standard or certification of the automobiles.
Townsley, 804 F.2d at 1414. The same rationale holds true in this case regarding Fla.Stat. § 320.02(9). As noted above, Fla. Stat. § 320.02(9) neither imposes additional requirements or burdens on the manufacturer or importer, nor involves the payment of additional fees. Additionally, section 320.02(9) does not have the effect of prescribing the sale of federally certified equipment, or impairing the objective of Congress in establishing uniform federal safety standards to permit the free marketability of vehicles in all states.
In 1982, Congress amended section 1392(d) by adding the following sentence to the end of the provision: “Nothing in this section shall be construed as preventing any state from enforcing any safety standard which is identical to a federal safety standard.” 15 U.S.C. § 1392(d) (1982). The Senate issued a report on the amendment which reads in part as follows:
The committee intends that states are not preempted from enforcing safety standards identical to federal standards which they have adopted. States may not require [state] certification or approval of motor vehicles or motor vehicle equipment. However, state enforcement may be carried out according to applicable state laws. States may undertake independent testing, and also may require manufacturers to submit adequate test data concurrent with the first sale or thereafter.
S.Rep. No. 505, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S.Code Cong. & Admin.News 3169, 3174.
In Georgia Automobile Importers Compliance Association, Inc. v. Bowers, 639 F.Supp. 352 (1986), the District Court for the Northern District of Georgia addressed the constitutionality of Georgia statutes O.C.G.A. §§ 40-2-25.1, 40-3-29.1, and 16-9-110 (1985) in light of 15 U.S.C. § 1392(d) (1982). In reviewing the legislative history of section 1392(d), the district court noted several statements made on the floor of the House of Representatives when the bill was passed indicating congressional intent. Representative Wirth stated that “[a] recent court case and NHTSA opinion have changed the scope of traditional state enforcement.” 128 Cong. Rec. H3438 (daily ed. June 14, 1982) (remarks of Rep. Wirth). Representative Moorhead considered the amendment to affirmatively declare states as having a role in enforcing federal safety standards. See 128 Cong.Rec. H3439 (daily ed. June 14, 1982) (remarks of Rep. Moorhead). In addition, Representative Dingell stated in regard to section 1392(d), as amended, that “states may undertake independent testing of vehicles or equipment and may require manufacturers to submit adequate data concurrently with the first sale within a state, or thereafter.” 128 Cong.Rec. H3440 (daily ed. June 14, 1982) (remarks of Rep. Dingell).
We agree with the court’s conclusion in Townsley that “the legislative history shows an intent to preempt state presale enforcement of federal standards where the sale of federally certified equipment is impaired by an independent state compliance system.” Townsley, 804 F.2d at 1415. Fla.Stat. § 320.02(9) does not create an impairment to the enforcement of federal safety standards or frustrate the intent of Congress in establishing uniformity of standards for manufacturers of vehicles; consequently, we hold that 15 U.S.C. § 1392(d) (1982) does not preempt Fla.Stat. § 320.02(9) (1985).
C. Commerce Clause
The district court concluded that since Fla.Stat. 320.02(9) prevents owners of gray market vehicles from titling and registering their vehicles prior to presenting proof of compliance with federal emission and safety standards, the marketability of gray market vehicles is limited and prevents their free introduction into the stream of commerce.
The commerce clause of the United States Constitution reads in part as follows: “The Congress shall have the power to regulate commerce with foreign nations, and among the several states_” U.S. Const. art I, § 8, cl. 3. In determining whether Fla.Stat. § 320.02(9) is violative of the commerce clause, we must (1) determine exactly what interest the statute purports to protect, (2) determine whether the statute burdens commerce, and if so, to what extent, and (3) balance the weight and nature of the interests protected by the statute against the extent to which it imposes a burden on commerce. See generally Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981).
In addressing the extent to which states may create laws affecting commerce, the Supreme Court has held that:
The commerce clause does not... invalidate all state restrictions on commerce. It has long been recognized that, ‘in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.’ [Citation omitted.] The extent of permissible state regulation is not always easy to measure. It may be said with confidence, however, that a state's power to regulate commerce is never greater than in matters traditionally of local concern. [Citation omitted.] For example, regulations that touch upon safety — especially highway safety — are those that ‘the Court has been most reluctant to invalidate.’ [Citations omitted.] Indeed, ‘if safety justifications are not illusory, the Court will not second guess legislative judgment about their importance in comparison with related burdens on interstate commerce.’ [Citation omitted.] Those who would challenge such bona fide safety regulations must overcome a ‘strong presumption of validity.’ [Citation omitted.]
Kassel, 450 U.S. at 669-70, 101 S.Ct. at 1315-16.
The objective of Fla.Stat. § 320.02(9) is to ensure that gray market vehicles comply with federal emission and safety standards before receiving titles and registration in Florida. Fla.Stat. § 320.02(9) advances a legitimate and local concern for the health and safety of the state’s citizens in that it attempts to prevent the sale and operation of vehicles in Florida that are not considered safe for persons and the environment under federal standards.
We must now determine the extent to which Fla.Stat. § 320.02(9) burdens commerce. Section 320.02(9) imposes restrictions on the importation of gray market vehicles into the United States. We agree with the district court that:
The statute prevents the titling and registration of vehicles which in turn limits the marketability of the cars. To force an importer to use a different port of entry, for example, Savannah, Georgia, or Mobile, Alabama, in order to receive registration and titles from the relevant state authorities without having to endure the trials and tribulations that Florida has erected in their path destroys the common market of commerce for the entire United States as established by the Constitution. It is precisely this type of state action that the Commerce Clause was designed to prevent; thus the statute is constitutionally infirm.
Accordingly, in weighing the local concerns of section 320.02(9) against the burden on commerce, we find that Fla.Stat. § 320.02(9) does violate the commerce clause. Although Fla.Stat. § 320.02(9) requires no greater compliance than compliance with applicable federal standards, Florida’s titling and registration statute imposes a burden on foreign and interstate commerce. The Florida Statute directs the stream of commerce in gray market vehicles from Florida to other states for those owners who have legitimate reasons for registering and titling their vehicles before being able to use them on the roads of Florida.
D. Immunity
Sims and the FICA filed suit in the district court against the State of Florida, Department of Highway Safety and Motor Vehicles, and the Attorney General seeking to enjoin the enforcement of Fla.Stat. § 320.02(9). Thereafter, Sims and the FICA filed a motion (which was not contested) to dismiss the Attorney General as a defendant in the case. The Director of the Division of Motor Vehicles, Florida Department of Highway Safety and Motor Vehicles, was never included as a party defendant. Thus, the only remaining party defendants in the present action are the State of Florida and one of its agencies— the Department of Highway Safety and Motor Vehicles. “It is clear... that in the absence of consent a suit in which the state or one of its agencies or departments is named as the defendant is prescribed by the eleventh amendment.” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984).
The state of Florida, in responding to the constitutional challenge to Fla.Stat. § 320.02(9), failed to plead the defense of sovereign immunity under the eleventh amendment and did not initially raise the issue on appeal. Nonetheless, “[T]he eleventh amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). Moreover, Florida’s constitution requires “specific, clear, and unambiguous language in a statute to constitute a waiver of sovereign immunity.” Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla.1978). In
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
FORTE v. UNITED STATES.
No. 6767.
United States Court of Appeals for the District of Columbia.
Decided April 5, 1937.
• J. William Tomlinson and James A. O’Shea, both of Washington, D. C., for appellant.
Leslie C. Garnett, U. S. Atty., and Roger Robb, Asst. U. S. Atty., both of Washington, D. C.
Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
STEPHENS, Associate Justice.
This is an appeal from a judgment of the District Court of the United States for the District of Columbia sentencing the appellant to imprisonment in a penitentiary. The case was tried to a jury. The appellant was charged with transporting a motor vehicle in interstate commerce, from the District of Columbia to Maryland, knowing it to have been stolen. The pertinent statute is the National Motor Vehicle Theft Act, 41 Stat. 324 (18 U.S.C.A. § 408). The text thereof is set forth in the margin. At the close of the case for the Government the appellant moved for a directed verdict in his own favor. During the argument of the motion, the United States Attorney advised the court that “the Government did not rely on the inference of guilt from possession of stolen property for a conviction in this case.” The trial judge overruled the motion. The appellant excepted and advised the judge that he would stand on the Government’s case, and requested the judge to instruct the jury to return a verdict of not guilty. This request the judge refused, and the appellant excepted. These rulings are assigned as error. The appellant contends that there was lacking, independent of his confession, substantial proof of 4he corpus delicti in that there was no evidence, independent of the confession, that he knew that the car was stolen. To the contrary the Government contends, apparently, that substantial proof of the whole of the corpus delicti, independent of the confession, is not as a matter of law requisite, and in any event that the scienter is not a part of the corpus delicti.
The evidence introduced for the Government was this: The car in question, a two seated Ford with District of Columbia tags, was stolen from in front of the residence of its owner in the District of Columbia on July 15, 1935. It was found by a police officer in the possession of the appellant in Baltimore on November 3, following. The appellant was driving it towards Washington; the officer apprehended him for speeding. When the car was thus discovered the rear seat and cushions had been removed, and the springs had been strengthened by adding leaves. The car smelled of alcohol. In it were gunny sacks and a robe. It bore New Jersey tags, and District of Columbia and Marjdand tags were found under the front seat, but the District of Columbia tags did not belong to it; and the original District of Columbia tags were not on it. The appellant had a District of Columbia driver’s permit, and a registration card issued to one Helen Kyle. The mileage of the car had increased since the date of the theft 6,-,500 miles. In a compartment in the back was $297 in cash. On his arrest the appellant said that this money had been given him in Washington to buy alcohol in Trenton, New Jersey, telling the arresting officer that the car and money were left at his home, which he said was in Washington, by one Monoi to make the trip. He said also on his arrest that he was coming from New Jersey. He told the arresting officer that he could have the money above mentioned if he would let him go. On the way back to Washington with another officer, the appellant admitted that he knew that the car he was using was a stolen car. To a third officer the appellant said that a man named Carroll brought the car to his house on Seventh Street in Washington and gave him money and the car to make the trip to New Jersey for alcohol. The appellant refused to tell where Carroll could be found, saying, “Never mind, I will take the rap for the car.” The appellant told this third officer that the cushions for the car were at his house on Seventh Street, S. W., Washington, D. C. The officer found the appellant’s mother there, but not the cushions. He never saw the appellant there. The cushions were returned to the owner of the car by the appellant’s attorney.
There is some division in the authorities in respect of the rule of proof in cases involving confessions. A distinguished American text writer, Mr. John H. Wig-more, is of the view that there should be no definite rule forbidding conviction of an accused in a criminal case upon his uncorroborated confession. He points out in respect of the English law:
“The proposed rule appeared in two variations; by the one, the corroborative evidence might be of any sort whatever; by the other, it must specifically relate to the ‘corpus delicti’, i. e., the fact of injury. The latter form tended to prevail; but in neither form did the rule obtain a general footing. So far as it can be supposed to obtain at all to-day in the English and Irish courts, it is apparently restricted to the case of homicide:...” [4 Wigmore, Evidence (2d Ed. 1923) § 2070, p. 406]
Further expressing his point of view as to the policy of such a rule, he states:
“The policy of any rule of the sort is questionable. No one doubts that the warning which it conveys is a proper one; but it is a warning which can be given with equal efficacy by counsel or (in a jurisdiction preserving the orthodox function of judges) by the judge in his charge on the facts. Common intelligence and caution, in the jurors’ minds, will sufficiently appreciate it, without a laying on of the rod in the shape of a rule of law. Moreover, the danger which' it is supposed to guard against is greatly exaggerated in common-thought. That danger lies wholly in a false confession of guilt. Such confessions, however, so far as handed down to us in the annals of our courts, have been exceedingly rare (ante, § 867). Such a rule might ordinarily, if not really needed, at least be merely superfluous. But this rule, and all such rules, are to-day constantly resorted to by unscrupulous counsel as mere verbal formulas with which to entrap the trial judge into an error of words in his charge to the jury. These capabilities of abuse make it a positive obstruction to the course of justice.” [4 Wigmore, Evidence (2d Ed. 1923) § 2070, p. 406]
Mr. Wigmore concedes, however, that except in a few jurisdictions, the courts in the United States have adopted a fixed rule that corroboration of a confession is necessary. *He believes them to have been “chiefly moved, in all probability, by Professor Greenleaf’s suggestion that ‘this opinion certainly best accords with the humanity of the criminal code and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases.’ ” 4 Wigmore, Evidence (2d Ed. 1923) § 2071, p. 407 In respect of variations of the rule in the United States, Mr. Wigmore states that “in most jurisdictions the stricter form of rule is taken, and the evidence must concern the ‘corpus delicti’:...”4 Wig-more, Evidence (2d Ed. 1923) § 2071, p. 408.
The conclusions reached by Mr. Wig-more on the one hand, and by Mr. Green-leaf and the greater number of the courts in the United States on the other, differ because they proceed from contrary premises. Mr. Wigmore’s premise is that there is little danger of false confessions of guilt. He predicates this upon the proposition above quoted that “so far as handed down to us in the annals of our courts, [false confessions] have been exceedingly rare.” To support this statement he comments that “No trustworthy figures of authenticated instances [of false confessions] exist; but they are concededly few.” 2 Wigmore, Evidence (2d Ed. 1923) § 867, pp. 227-228. He then reviews in footnote a number of “the most notable in English and American annals” including Perry’s Case, 14 How. St.Tr. 1312, 1660 — where one of two brothers confessed that he, his brother and his mother had murdered his master, and they were executed, and two years later the master returned home explaining that he had been kidnapped and sold to the Turks. The premise of the reasoning of Mr. Greenleaf and the great majority of the courts in the United States is that there is real danger of false confessions, coerced or psychopathic. For this premise there seems now, whatever may have been the state of the data in 1923, the date of Mr. Wigmore’s work, substantial foundation, not only in the annals of the courts in the sense of the reported decisions thereof, but also in dependable reports of criminological investigations. The comprehensive and detailed Report on Lawlessness in Law Enforcement of the National Commission on Law Observance and Enforcement (No. 11, June 25, 1931) concludes that the practice of forcing confessions is widespread throughout the country. &See.also on this subject Leon R. Yankwich, “The Lawless Enforcement of the Law,” (1935) 9 So. Calif.L.Rev. 14, and see Note (1930) 43 Harv.L.Rev.
We do not assume to say that third degree methods are practiced in this jurisdiction. Happily no such practice has reached the attention of this court since Ziang Sung Wan v. United States, 266 U. S. 1, 45 S.Ct. 1, 69 L.Ed. 131 (reversing Ziang Sung Wan v. United States, 53 App.D.C 250, 289 F 908), and Perrygo v. United States, 55 App.D.C. 80, 2 F.(2d) 181 Happily also according to the Report of the National Commission referred to there is little evidence of the use o t ir egree methods by Federal officials anywiere [p. 155], Moreover, there is no suggestion m the instant case that the statement of the appellant that he knew the car was stolen was not voluntary. But the case cannot be decided upon an ad, hoc basis. The question presented is of first impression here; and we feel bound upon a subject touching so materially liberty, and in many cases life itself, and especially in the criminal law where justice requires equality of treatment in respect of trial procedure and proof, to give weight to the findings of the National Commission, and to follow in adopting a rule for this jurisdiction the rule of the great majority of the courts in the United States — that there can be no conviction of an accused in a criminal case upon an uncorroborated confession, and the further rule, represented by what we think is the weight of authority and the better view in the Federal courts, that such corroboration is not sufficient if it tends merely to support the confession, without also embracing substantial evidence of the corpus delicti and the whole thereof. We do not rule that such corroborating evidence must, independent of the confession, establish the corpus delicti beyond a reasonable doubt. It is sufficient, according to the authorities we follow, if, there being, independent of the confession, substantial evidence of the corpus delicti and the whole thereof, this evidence and the confession are together convincing beyond a reason¡able doubt of'the commission of the crime 'and of the defendant’s connection therewith.
In support of the point of vicw we take we note the following: In Tingle v. United States (CCA) 38 R(2d) 573, the defend- ^ a wardlousemall) was charged -with conspjrjng with. others 'to manufacture, sell and possess intoxicating liquor and propgrty desi d and intended for use in such manufacture, He signed statements that hg had leasgd a • tkm of hig warehousc for a bre and was aware of the pur_ poses -for which it was to be used. The c t ru]ecj •
“But in conspiracy cases, the unlawful combination, confederacy, and agreement between two or more persons, that is, the conspiracy itself, is the gist of the action, and is the corpus delicti charged. It is, therefore, primarily essential to establish the existence of a confederation or agreement between two or more persons before a conviction for conspiracy to commit an offense against the United States can be sustained. This statement requires no citation of authorities. It is equally true that ‘extrajudicial confessions or admissions are not sufficient to authorize a conviction of crime, unless corroborated by independent evidence of the corpus delicti.’ Martin v. United States (C.C.A.8) 264 F. 950. This has been the consistent holding of this court, in harmony with uniform decisions in other jurisdictions. Naftzger v. United States (C.C.A.) 200 F. 494; Goff v. United States (C.C.A.) 257 F. 294; Turinetti v. United States (C.C.A.) 2 F.(2d) 15. It is necessary, then, to determine whether there is in the record before us any substantial independent evidence of the corpus delicti, that is, the conspiracy charged, tending to corroborate the extrajudicial statements and admissions of appellant.” [38 F.(2d) 573, at page 575]
Holding that the evidence in the case, outside the defendant’s statement, was insufficient to satisfy the rule stated, the court reversed a conviction. In Jordan v. United States (C.C.A.) 60 F.(2d) 4, certiorari denied 287 U.S. 633, 53 S.Ct. 84, 77 L.Ed. 549, where the defendant was charged with perjury by making a false affidavit before a notary, it was objected that there was no direct evidence that he actually took the oath before the notary, and it was contended therefore “that the evidence does not satisfy the rule that in a criminal case the corpus delicti is not proved by an extrajudicial admission of confession of the defendant^, but must be supported by independent evidence.” But the notary’s jurat itself had been introduced and it tended to show that the oath had been duly administered to the defendant in person as required by law. Recognizing the rule requiring evidence of the corpus delicti independent of the confession, the court said:
“The rule does not require that the independent evidence of corpus delicti shall be so full and complete as to establish unaided the commission of a crime. It is sufficient if the extrinsic circumstances, taken in connection with the defendant’s admission, satisfy the jury of the defendant’s guilt beyond a reasonable doubt. Bolland v. United States (C.C.A.) 238 F. 529, 530; Daeche v. United States (C.C.A.) 250 F. 566; Berryman v. United States (C.C.A.) 259 F. 208; Rosenfeld v. United States (C.C.A.) 202 F. 469; Mangum v. United States (C.C.A.) 289 F. 213.” [60 F. (2d) *4, at page 5]
In Mangum v. United States (C.C.A.) 289 F. 213, involving a count of assault to commit rape and a count for rape, there was a confession, and it was contended that it was not supported by independent evidence of the corpus delicti. Recognizing that there must be evidence of the corpus delicti independent of the confession the court said:
“Evidence aliunde, however, as to the corpus delicti, need' not be such as to alone establish the fact beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was in fact committed, and the plaintiff in error committed it. State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234 [2 Ann.Cas. 431]; Flower v. U. S., 116 F. 241, 53 C.C.A. 271; Rosenfeld v. U. S., 202 F. 469, 120 C.C.A. 599.” [289 F. at 216]
In Flower v. United States (C.C.A.) 116 F. 241, involving a charge of embezzlement and a confession, there was again raised the question of the sufficiency of the proof of the corpus delicti..The court there quoted, as a correct statement of the law, 6 Am. & Eng.Enc.Law (2d Ed.) p. 582:
“A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti, is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond'a reasonable doubt.” [116 F. 241, at page 247]
See also United States v. Boese (D.C.) 46 F. 917. Probably the most frequently quoted, and we think at times misquoted, case on the subject of corroboration of confessions is Daeche v. United States (C.C. A.) 250 F. 566, where the court spoke through Learned Hand, then District Judge. There the indictment was for a conspiracy maliciously to attack vessels in United States waters, with intent to despoil the owners of munitions, by attaching bombs to the sterns of the vessels in such wise, that they would explode and destroy the vessels or disable them. The defendant confessed his part in the plan, and the question whether or not there was sufficient evidence of the corpus delicti—the agreement to attack the ships—independent of the confession, was raised. Judge Hand expressed his personal agreement with the point of view of Mr. Wigmore discussed supra, but said that he nevertheless felt obliged to recognize the rule as contrary. He stated:
“It must be conceded that there has been a very general concordance of judicial opinion in the United States that some sort of corroboration of a confession is necessary to conviction, and this concordance has extended to federal courts as well as elsewhere. U. S. v. Williams, 1 Cliff. 5, 28 Fed.Cas. [636] No. 16707; U. S. v. Boese (D.C.) 46 F. 917; U. S. v. Mayfield (C.C.) 59 F. 118; Flower v. U. S., 116 F. 241, 53 C.C.A. 271; Naftzger v. U. S., 200 F. 494, 118 C.C.A. 598; Rosenfeld v. U. S., 202 F. 469, 120 C.C.A. 599. That the rule has in fact any substantial necessity in justice we are much disposed to doubt, and indeed it seems never to have become rooted in England.. Wigmore, § 2070. But we should not feel at liberty to disregard a principle so commonly accepted, merely because it seems to us that such evils as it correct-s could be much more flexibly treated by the judge at trial, and even though we should have the support of the Supreme Court of Massachusetts in an opposite opinion. Com. v. Killion, 194 Mass. 153, 80 N.E. 222, 10 Ann. Cas. 911. We start therefore, with the assumption that some corroboration is necessary, and the questions are to what extent must it go, and how shall the jury deal with it after it has been proved. The corroboration must touch the corpus delicti in the sense of the injury against whose occurrence the law is directed; in this case, an agreement to attack or set upon a vessel. Whether it must be enough to establish the fact independently and without the confession is not quite settled. Not only does this seem to have been supposed in some cases, but that the jury must be satisfied beyond a reasonable doubt of the corpus delicti without using the confessions, before they may consider the confessions at all. Gray v. Com., 101 Pa. 380, 47 Am.Rep. 733; State v. Laliyer, 4 Minn. 368 (Gil. 277); Lambright v. State, 34 Fla. 564, 16 So. 582; Pitts v. State, 43 Miss. 472. But such is not the more general rule, which we are free to follow, and under which any corroborating circumstances will serve which in the judge’s opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof. U. S. v. Williams, supra; Flower v. U. S., supra; People v. Badgley, 16 Wend.(N.Y.) 53; People v. Jaehne, 103 N.Y. 182, 199, 8 N.E. 374; Ryan v. State, 100 Ala. 94, 14 So. 868; People v. Jones, 123 Cal. 65, 55 P. 698.” [250 F. 566, at pages 571, 572]
There are cases apparently contrary. Pearlman v. United States (C.C.A.) 10 F. (2d) 460, involved the same statute as does the instant case. The question there was “whether the proofs 'of the government measure up to the rule that there must be testimony tending to prove the corpus delicti independent of any confession of defendant.” Notwithstanding this implied recognition of the rule in terms of the statement of the question, the court found the law to be as expressed in a partial quotation of the remarks of Judge Learned Hand above. The Pearlman opinion states: “We find the general rule to be as stated by Judge Learned Hand, in. Daeche v. United States... :
“ ‘Any corroborating circumstances will serve which in the judge’s opinion go to 'fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof’.. [10 F. (2d) 460, at page 462]
That partial quotation from Judge Hand might well seem to indicate that the corroborating evidence need not touch the corpus delicti. But that sentence alone, we think, does not reflect the true meaning of Judge Hand’s opinion. In Forlini v. United States (C.C.A.) 12 F.(2d) 631, 634, in an opinion by Mantón, Circuit Judge, in which Judge Hand concurred, Daeche v. United States is referred to in a manner which, in our view, makes clear that it was intended to hold therein that in addition to a confession there must be “some independent proof of the corpus delicti.” The opinion in Pearlman v. United States is further confused by including the quotation set out supra from Mangum v. United States, which clearly requires some evidence of the corpus delicti aliunde the confession. On the¡ evidence in the Pearlman Case, which was slight indeed, independent of the confession, so far as the corpus delicti was concerned, the case may be said to hold that the evidence, independent of a confession, need not touch the corpus delicti at all. But if the case so holds, we are unwilling to follow it. In Wynkoop v. United States (C.C.A.) 22 F.(2d) 799, where the defendant, a prohibition agent, was indicted for converting to his own use liquor of which he had come into possession officially, and where there were admissions by the defendant, the court, partially quoting as did the court in the Pearl-man Case, Judge Hand’s opinion in Daeche v. United States, apparently intended to rule that any corroborating circumstances which fortify the truth of a confession will suffice for conviction, even if they do not, independently, touch the corpus delicti. But again we think this decision does not correctly reflect the views of Judge Hand in the Daeche Case, and we cannot follow it. In Bolland v. United States (C.C.A.) 238 F. 529, where the defendant was charged with knowingly receiving in pledge from a soldier property of the United States, and there was a confession, and a contention that the corpus delicti had not been established by evidence independent of the confession, the court apparently intended to rule that “All that can be required is that there should be corroborative evidence tending to prove the facts embraced in the confession;.. This was quoted from the opinion of the court in United States v. Williams, 1 Cliff. 5, 27, 28, Fed. Cas.No.16,707. That case is frequently cited, and is classified by Mr. Wigmore as supporting the proposition that 'the corroborating evidence need not touch the corpus delicti. In that case the facts were that the brig Albion Coop with a crew of seven sailed from Portland, Maine, on July 7, 1857, on a voyage to Cuba. Nothing was heard of those on board until September 2 following, when the bark Black ■Squall came upon an open small boat containing four of the crew, three of whom became the defendants in the case—the fourth dying before trial. In the small boat there were water, a quantity, of provisions, the compass and register of the brig, clothing of the first and second mates, and the master’s watch. The defendants first stated that the missing members of the crew, the captain and the two mates, had been washed overboard in a squall while the defendants were below, and that the brig being injured and unmanageable, the defendants and the fourth member took to the small boat to save their lives. But the defendants ultimately confessed that they had murdered the rest of the crew, and told in detail the manner and circumstances of the alleged crime. They were indicted for the murder of Quinton D. Smith. According to their confession they killed him, sewed his body in a sail with weights, and threw him overboard. The following was held sufficient corroboration of the confession: that Smith and the defendants sailed in the same vessel; that Smith had not been heard of since; that neither vessel nor Smith nor the other missing members of the crew ever arrived at destination or returned to the home port; that the small boat in which the defendants were found was the only one which the brig had; that the small boat carried water, compass and provisions—indicating preparation to leave the brig; the personal articles of the three missing members of the crew found in the small boat; the conflicting stories originally told by the defendants. Sustaining conviction of the defendants, the court said that of the two elements of the corpus delicti, the fact of death, and the criminal means thereof, only the first need be fully proved independent of the confession, that the confession might establish the second element provided it satisfactorily appeared that other evidence thereof did not exist. We think that this case, decided in 1858, does not represent the current rule upon the subject.
In the instant case the corpus delicti is transportation of the vehicle in interstate commerce from the District of Columbia to Maryland knowing that it was stolen. The contention of the Government that the scienter is not a necessary element of the corpus delicti cannot be sustained. There is nothing criminal under the statute about transporting a vehicle across a state line unless the person transporting it knows it to be stolen. The law is well settled that the corpus delicti includes not only the body or fact of the wrong, in the sense of the death in homicide or the loss of the chattel in larceny, but also the criminal means by. which the same came about. See 4 Wig-more, Evidence (2d Ed. 1923) § 2072, where the learned author, first expressing the personal view that the term corpus delicti ought to be taken to include only the first element, the fact of the injury or loss, and not the second, the criminality which is the source of the loss, nevertheless concedes that “by most judges the term is made to include the second element also.” Mr. Wigmore cites among other authorities Commonwealth v. Webster, Bemis’ Rep.(Mass.) 473, where Shaw, C. J., said: “In a charge of criminal homicide, it is necessary in the first place by full and substantial evidence to establish what is technically called the ‘corpus delicti’,—the actual offense committed; that is, that the person alleged to be dead is in fact so; that he came to his death by violence and under such circumstances as to exclude the supposition of a death by accident or suicide and warranting the conclusion that such death was inflicted by a human agent; leaving thfe question who that guilty agent is to after consideration.”
The corpus delicti does not properly include, as a third element, the agency of the accused as the criminal. This would make the term synonymous with the whole of the charge, and such a definition has been repudiated. See 4 Wigmore, Evidence (2d Ed. 1923) § 2072 (3.), and therein cited Messel v. State, 176 Ind. 214, 95 N.E. 565 (rape under age), and State v. Schyhart (Mo.Sup.) 199 S.W. 205 (killing cattle). It would require, in view of the corroboration rule, that the whole of the charge, including the criminal agency of the accused, be evidenced independently of the confession. It is to be noted, however, that in certain types of crimes involving scienter on the part of the accused it is not possible to separate, either conceptually or practically—that is in respect of the proof—• the scienter, as an element of the corpus delicti, and the agency of the accused. So in the crime of receiving stolen goods knowing them to be stolen, and in the crime at bar, it is not possible to separate, either conceptually or practically, the element of guilty knowledge in the transportation and the element of agency of the accused as the criminal. But this cannot operate to diminish the duty of the Government to present evidence of both elements of the corpus delicti independent of the confession.
Under the rules which we have laid down above we are unable to find warrant in the evidence presented in the instant case for denial of the motion for a directed verdict and refusal of the requested instruction of a verdict of not guilty. As stated above “the Government did not rely on the inference of guilt from possession of stolen property for a conviction in this case.” Why the Government made this waiver does not appear—conceivably because of Kasle v. United States (C.C.A.) 233 F. 878, 888-890. But with this inference out of the case we see no substantial evidence, independent of the appellant’s confession, of guilty knowledge on his part.1 ***** His offering the $297 to the officer if he would let him go is but a suspicious circumstance. It points to possible guilt of some offense, but not of any particular offense. The evidence that the original District of Columbia tags were not on the car and that there were District of Columbia tags in it but not belonging to it, and Maryland tags also in it, and New Jersey tags on it, are again suspicious circumstances pointing conceivably to some guilty use of the car; but they do not point to knowledge on the part of the appellant that it was stolen.
In accordance with the foregoing the judgment of the trial court is
Reversed.
Be it enacted by the Senate and Souse of Representatives 'of the United States of America, in Congress assembled, That this Act may be cited as the National Motor Vehicle Theft Act.
Sec. 2. That when used in this Act:
(a) The term “motor vehicle” shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails;
(b) The term “interstate or foreign commerce” as used in this Act shall include transportation from one State, Territory, or the District of Columbia, to another State, Territory, or the District of Columbia, or to a foreign country, or from a foreign country to any State, Territory, or the District of Columbia.
See. 3. Tbat whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by.a fine of not more than $5,000, or by imprisonment of not more than five years, or both.
Sec. 4. That whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000,.or by imprisonment of not more than five years, or both.
Sec. 5. That any person violating this Act may be punished in any district in or through which such motor vehicle has been transported or removed by such offender.
References to these are given in 4 Wigmore, Evidence (2d Ed.1923) § 2071, p. 407, note 1.
References to these are given in 4 Wigmore, Evidence (2d Ed.1923) § 2071, p. 408, notes 3 and 4.
The reference to Greenleaf is to Section 217, the full text of which as it appears in the 15th edition, Yol. 1, is:
“Whether extrajudicial confessions uncorroborated. by anj- other proof of the corpus delicti are of themselves sufficient to found a conviction of the prisoner, has been gravely doubted. In the Roman law, such naked confessions amounted only to a semiplena probatio, upon which alone no judgment could be founded; and at most the party could only in proper cases be put to the torture. But if voluntarily made, in the presence of the injured party, or if reiterated at different times in Ms absence, and persisted in, tbey were received as plenary proof. In each of the English cases usually cited in favor of the sufficiency of this evidence, there was some corrobo- • rating circumstance. In the United States, the prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction; and this opimon certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases, and it seems countenanced by approved writers on this branch of the law.”
The Report reached the. following “Conclusions as to the Existence of the Third Degree”:
There are difficulties in forming conclusions as to the prevalence of the third degree. Since the practice is illegal, there are bound to be professional denials of its existence from the police. On the other hand, the assertions of...., prisoners and their counsel are likely to be biased and exaggerated. The problem is one of police administration and therefore local. Conditions may differ in near-by localities, even in cities in the same State subject to the same laws. Conditions in a given locality may change with a change' of administration. (The only thorough-going investigation in any community would be one by persons clothed, as we were not, with the power by subpoena to compel the attendanee of witnesses.)
But, after making all deductions for-the inherent uncertainties of the subject matter, we regard the following propositions as established:
I. Existence
The third degree — the inflicting of pain, physical or mental, to extract confessions or statements — is widespread throughout the country.
II. Physical Brutality
Physical brutality is extensively practiced. The methods are various. They range from beating to harsher forms of torture. The commoner forms are beating with the fists or with some im- ■ plement, especially the rubber hose, that inflicts pain but is. not likely to leave permanent visible scars.
III. Protracted Questioning
The method most commonly employed is protracted questioning. By this we mean questioning — at times by relays of questioners-so protracted that the prisoner’s energies are spent and his powers of resistance overcome. At times such questioning is the only method used. At times the questioning is accompanied by blows or by throwing continuous straining light upon the face of the suspect
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_source
|
F
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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.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16175.
United States Court of Appeals Seventh Circuit.
March 26, 1969.
Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent.
Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges,
KILEY, Circuit Judge.
The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order.
Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries.
The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president.
The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices.
The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit.
Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative.
The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court.
The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act.
The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968).
The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear.
The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because
As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961).
Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State.
Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows:
The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.
That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved.
The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit.
In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here.
The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit.
The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate.
In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated.
The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings.
The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968).
A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965).
The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964).
The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940).
Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced.
MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs.
I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court.
This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious.
Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate.
In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows:
“National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.)
It states:
“Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.)
Then follows the heart of the decision:
“The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.)
Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases.
Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision:
“The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.”
In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous.
The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.”
Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief:
“Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.)
In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity.
There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected.
In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896):
“The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.)
In deciding this issue we stated (page 897):
“It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * *
“It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.)
The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case.
In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500):
“The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.)
The Board in its brief, in support of the instant petition, states:
“ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.”
In a footnote the Board states:
“For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.”
While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20):
“In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.)
Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383):
“It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office.
“The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.”
Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams.
I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision.
. 29 U.S.C. §160
sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * *
. In Singer the Board’s order was denied enforcement on other grounds.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_geniss
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G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Maria S. RODRIGUEZ, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 80-1555.
United States Court of Appeals, First Circuit.
Argued Feb. 3, 1981.
Decided May 4, 1981.
Patricio Martinez-Lorenzo, Rio Piedras, P. R., for plaintiff, appellant.
Barry J. Reiber, Asst. Regional Atty., Dept, of Health and Human Services, New York City, with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., Frank V. Smith, III, Regional Atty., New York City, and William Kanter, Atty., Dept, of Justice, Washington, D. C., were on brief, for defendant, appellee.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
BREYER, Circuit Judge.
Maria Rodriguez, the appellant, brought this action to obtain judicial review of a final decision by the Secretary of Health and Human Services that she did not qualify for widow’s disability benefits under the Social Security Act, 42 U.S.C. § 402(e) (1970). She attacks the Secretary’s determination that her asthma, arthritis and mental condition were not disabling, claiming that this determination is not supported by substantial evidence. The district court granted judgment in favor of the Secretary and dismissed the complaint. We affirm the district court’s decision.
I.
The Social Security Act provides disability benefits to a widow if (1) she is the widow of a wage earner who died fully insured, (2) she is between the ages of fifty and sixty, and (3) her physical or mental impairment or impairments (i) are expected to result in death or to last for a continuous period of not less than twelve months and (ii) are “of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.” Id. § 423(d)(2)(B). The Act is thus more restrictive when applied to a widow than to a wage earner, for a wage earner may satisfy a lesser standard and also may rest his case in part upon such nonmedical factors as age, education, and work experience. A widow, however, must satisfy strict, medically-based regulations which the Secretary of Health and Human Services has promulgated in accordance with the statute’s direction. These regulations contain a “Listing of Impairments,” 20 C.F.R. ch. Ill, subpart P, app. 1 (1980), that describes, for each of the major body systems, those impairments that are considered sufficiently severe to constitute a disability under the Act. See id. § 404.1525 (Aug. 20, 1980). The regulations provide:
We will find that you are disabled and pay you benefits as a widow, widower, or surviving divorced wife if . .. [y]our impairments) has specific clinical findings that are the same as those for any impairment in the Listing of Impairments ... or are medically equivalent to those for any impairment shown there ....
Id. § 404.1578(a). They go on to state:
(a) How medical equivalence is determined. We will decide that your impairments) is medically equivalent to a listed impairment in Appendix 1 if the medical findings are at least equal in severity and duration to the listed findings. We will compare the symptoms, signs, and laboratory findings about your impairments), as shown in the medical evidence we have about your claim, with the medical criteria shown with the listed impairment. If your impairment is not listed, we will consider the listed impairment most like your impairment to decide whether your impairment is medically equal. If you have more than one impairment, and none of them meets or equals a listed impairment, we will review the symptoms, signs, and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment.
(b) Medical equivalence must be based on medical findings. We will always base our decision about whether your impairments) is medically equal to a listed impairment on medical evidence only. Any medical findings in the evidence must be supported by medically acceptable clinical and laboratory diagnostic techniques. We will also consider the medical opinion given by one or more physicians designated by the Secretary in deciding medical equivalence.
Id. § 404.1526(a)-(b). Plaintiff believes that her asthma, arthritis, and mental condition, when taken together, are equivalent to conditions described in the listings and thus warrant a finding of disability.
Plaintiff filed her application for benefits in October 1977. She described her disability as arthritis and asthma. She submitted a “certification” and a subsequent report from her doctor, Jose Colon Morales, a general practitioner. Dr. Colon wrote in the certification that she “has been under treatment for severe arthritis and this precludes her from working.” She also submitted a statement from Dr. C. J. Zamora Pamies, who specializes in psychiatry and neurology but also apparently practices general medicine. In a report dated October 3, 1977, based upon two examinations conducted in January and June of that year, he wrote that she “has chronic arthritis and bronchial asthma, conditions which disable her to work.” The Puerto Rico Disability Unit of the Social Security Administration sent Mrs. Rodriguez to Dr. Jose Ramirez Rivera, a specialist in internal medicine. He conducted what appear from the record to be more extensive tests than the other two doctors. They included x-rays of the chest, spine, right hand and left shoulder, measurements of pulmonary function, and other laboratory testing. He concluded that plaintiff suffered from “mild” bronchial asthma and a generalized bone arthritis which was “moderately severe” in her spine. The accompanying x-ray report disclosed “minimal” inflammation of the spine, evidence of arthritic changes in the shoulder and some deformity of one finger. In his detailed report, Dr. Ramirez included the SSA’s disability determination form upon which he noted that Mrs. Rodriguez could, during an eight-hour workday, sit for seven to eight hours, stand for five to six hours, and walk for three to four hours. In his view, she was able to lift or carry up to ten pounds frequently and up to twenty pounds occasionally. She could use her hands for grasping, pushing, and pulling, but not for fine manipulating. She could use her feet for repetitive movements. She was not able to squat or crawl, but she could bend and climb occasionally. On the basis of the reports of Dr. Colon, Dr. Zamora and Dr. Ramirez Rivera, the Disability Unit examiner concluded that plaintiff’s asthma and arthritis were not of sufficient severity to warrant a finding of disability.
Plaintiff asked for reconsideration. The Disability Unit then sent her to another doctor specializing in internal medicine, Dr. Jaime Ortiz Toro. He conducted another thorough examination with x-rays of the chest and laboratory reports. In a detailed report, he concluded: “[The mjain problem of this lady is her asthma, which is moderately controlled with present management. Her second problem, osteoarthritis, needs adequate management and physical therapy to have some improvement.” Dr. Ortiz’s “disability determination form” is less optimistic than that of Dr. Ramirez Rivera. It states that, during an eight-hour workday, Mrs. Rodriguez can sit for only three hours, stand for one hour and walk for one hour. She can lift up to twenty pounds or carry up to ten pounds only occasionally. She can use her hands for grasping, pushing, pulling and fine manipulating. She can use her feet. She can bend and reach above shoulder level occasionally, but she cannot squat, crawl, or climb. The Disability Unit examiner concluded on the basis of this new examination (and the prior examinations) that plaintiff had bronchial asthma, that she had no heart condition, and that her impairments were not severe enough to warrant a finding of disablement.
Plaintiff then sought a hearing before an administrative law judge. At the de novo hearing, which was held on June 26, 1978, plaintiff and her daughter testified. Plaintiff complained of arthritis, asthma, severe headaches, chest pains, and other ailments. After the hearing, the Disability Unit sent her to a psychiatrist, Dr. Mojica Sandoz, for a psychiatric evaluation. Dr. Mojica wrote that she was logical, lucid, and coherent, possessed adequate judgment and had no difficulty in establishing interpersonal relations. He found her depressed, with a tendency towards invalidism and “hypochondria-cal thinking.” Based upon his detailed findings, he diagnosed a chronic but moderate “depressive neurosis,” accompanied by “insecurity feelings, ... overpreoccupation about physical condition, anxiety and tension and no insight.” Noting that plaintiff “has never worked outside doing the usual household chores,” he concluded: “It will be very difficult for her to tolerate sustained work pressure and criticism, and to adjust at her age to a long-lasting competitive work condition. The working prognosis is considered poor.”
The Disability Unit then sent the medical reports of all five examining physicians to Dr. J. J. Ramirez Fuentes, a specialist in psychiatry, and asked his opinion as to whether plaintiffs asthma, arthritis and depressive neurosis were the medical equivalent of a listed impairment. Dr. Ramirez Fuentes emphasized those notations in the various reports characterizing her depressive neurosis as “moderate,” her asthma as “mild,” and her arthritis as “moderately severe.” He stated that, in his opinion, the severity of plaintiff’s problems, as revealed in the reports of the laboratories and examining doctors, and when considered either individually or in combination, did not rise to the level of severity required for a finding of “disability” under the SSA regulations.
The Administrative Law Judge concluded that Mrs. Rodriguez was not disabled. He based his conclusion upon the reports of the five examining doctors, upon the view of Dr. Ramirez Fuentes, the nonexamining medical adviser, upon the x-ray results showing no arthritic changes of the severity contemplated by the regulations, and upon his observation of plaintiff at the hearing. He found some of the plaintiff’s statements at the hearing inconsistent with others she had made and gave her testimony “low credibility.”
The SSA Appeals Council denied Mrs. Rodriguez’s request for review, and she then filed an action for review in the federal district court. In the meantime, the SSA had revised the Listing of Impairments governing the determination of widow’s disability claims. See 44 Fed.Reg. 18170 (March 27, 1979). Therefore, at the Secretary’s request, the court remanded the case to the agency to obtain an updated medical opinion about the effect of the new listings. The SSA then sent the medical documents to Dr. Edwin C. Mitchell, an orthopedic surgeon. After reviewing the x-ray results and examining physician reports, Dr. Mitchell concluded that plaintiff’s arthritis was not severe enough to warrant a finding of disability, either by itself or in combination with her psychological ailments. The Appeals Council, in a careful opinion, reviewed all the medical evidence, including the reports from the five examining doctors and the two medical advisers. On the basis of this evidence and the ALJ’s opinion, the Council affirmed the ALJ’s denial of benefits.
II.
The basic standards for review in this case are not in dispute. The Social Security Act specifically mandates that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive .... ” 42 U.S.C. § 405(g) (1970). In reviewing the record for substantial evidence, we are to keep in mind that “[ijssues of credibility and the drawing of permissible inference from evi-dentiary facts are the prime responsibility of the Secretary.” Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965). The Secretary may (and, under his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or for the courts. Richardson v. Perales, 402 U.S. 389,399, 91 S.Ct. 1420,1426,28 L.Ed.2d 842 (1971); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975) (per curiam). We must uphold the Secretary’s findings in this case if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Lewis v. Califano, 574 F.2d 452, 455 (8th Cir. 1978); Sullivan v. Weinberger, 493 F.2d 855, 861 (5th Cir. 1974), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975).
Plaintiff disputes none of these points. Rather, she makes two related claims. First, citing this Circuit’s case of Browne v. Richardson, 468 F.2d 1003 (1st Cir. 1972), and analogous holdings in other circuits, she claims that evidence provided by doctors who have neither examined her nor testified at her hearing cannot, by itself, constitute substantial evidence. Second, she argues that the only evidence in the record that contradicts her claim that the combination of her asthma, arthritis and mental condition disables her consists of the reports of Dr. Ramirez Fuentes and Dr. Mitchell, neither of whom examined her or testified.
We reject plaintiff’s arguments because the Secretary’s conclusion in this case does not rest solely upon the reports of the nonexamining, nontestifying doctors. To the contrary, the record contains considerable evidence that would allow a reasonable person to conclude that plaintiff’s ailments are not, individually or in combination, equivalent to the disabling conditions contained in the Secretary’s listings. Such evidence includes x-ray reports, laboratory reports, pulmonary examination reports, and reports of both psychiatric and physical medical examinations. Indeed, the reports of the neutral examining physicians — Dr. Ortiz, Dr. Ramirez Rivera, and Dr. Mojica— are sufficiently detailed that they would appear sufficient to support the agency’s conclusion even without further evaluation. They reflect a more extensive examination than the contrary reports of Dr. Colon and Dr. Zamora; the first two clearly reflect an overall evaluation of plaintiff’s physical condition, and the psychiatrist’s report is sufficiently detailed to allow the agency to factor in plaintiff’s mental condition. Dr. Ramirez Fuentes and Dr. Mitchell were admittedly the only two doctors to express explicit opinions about the medical equivalence of plaintiff’s combined ailments. However, their opinions on this question (which is ultimately for the finder of fact to decide) are not the only evidence on the question. Indeed, even if the final two reports of Drs. Ramirez Fuentes and Mitchell are treated not as evidence at all, but as neutral advisory opinions designed to help the lay trier of fact decide the question of equivalence, the remaining evidence would seem adequate to support the agency’s findings.
There is no need, however, for the agency to treat these advisory reports as if they had no evidentiary weight. Although Browne suggests that such reports cannot by themselves constitute substantial evidence, it does not hold that they are to be treated as irrelevant. The weight to which they are entitled will vary with the circumstances, including the nature of the illness and the information provided the expert. Cf. Guzman Diaz v. Secretary of HEW, 613 F.2d 1194, 1199 n.7 (1st Cir. 1980) (whether testimony of nonexamining physician can constitute substantial evidence “will doubtlessly vary with the circumstances”). Obviously, the fact that the experts have neither examined nor testified lessens the probative power of their reports. But the facts that the experts received extensive documentation containing relevant information, that they were highly qualified, that they reviewed the record, that they confined themselves to expressing an opinion about “equivalency” on the basis of the clinical reports before them — all factors present here — militate in favor of according their reports some evidentiary value.
Of course, the agency might have called for still one more medical examination focusing on the combination of plaintiff’s physical and mental ailments, but its decision not to do so is reasonable. Plaintiff’s mental condition did not become an issue until after her hearing; neither she nor her own doctors (including a psychiatrist) had previously mentioned it. Apparently, the agency subsequently decided to send her to a psychiatrist, Dr. Mojica, who wrote a detailed report describing her condition. The value of still one more examination, after five doctors had already examined the plaintiff, is not obvious. Similarly, the agency’s decision not to ask Drs. Ramirez Fuentes and Mitchell to testify seems reasonable as there is no indication from the record that an opportunity to cross-examine them would have provided either additional evidence or enlightenment.
In sum, the record indicates that this is not a case in which the agency treated an applicant’s claim either grudgingly or summarily. It is not a case in which the agency ignored her evidence or failed to give it adequate weight. It is a case in which the agency investigated a matter thoroughly, weighing the opinions of at least seven doctors, and made certain that its conclusions rested upon clinical examinations as well as medical opinions. It is also a case that presents what is obviously a close question of fact and judgment. The agency’s determination of this question is reasonable and supported by substantial evidence in the record. The decision of the district court upholding the agency is, therefore,
Affirmed.
. A wage earner is considered disabled under the Act if unable to engage in “any substantial gainful activity.” 42 U.S.C. § 423(d)(1)(A) (1970) (emphasis added).
. Id. § 423(d)(2)(A).
. The regulations pertaining to widow’s disability cases have recently been rewritten and rearranged to “make them easier to read and understand.” 45 Fed.Reg. 55566, 55566 (Aug. 20, 1980). At least as applicable to the present case, no substantive changes were enacted. Although these revisions have not yet been codified in C.F.R., the respective C.F.R. section numbers have been identified. We will cite to these revisions as follows: 20 C.F.R. § - (Aug. 20, 1980).
. Dr. Colon issued his certification on October 3, 1977. The record does not reveal any underlying clinical support for his conclusion, nor does it indicate when, as of that date, he had last seen plaintiff. Prior to the issuance of his further report on October 17, 1977, Dr. Colon examined plaintiff and also obtained x-rays of the lower back region. In that later report, he diagnosed arthritis in several locations and concluded that recovery was “not expected.”
. Dr. Zamora conducted a third examination, without x-rays or laboratory testing, on October 13, 1977. He diagnosed arthritis in her spine and knees and bronchial asthma and reported “little improvement.”
. The examiner stated: “Claimant has asthma . and osteoarthritis. However the medical evidence shows no severe condition in her respiratory system. Laboratory findings are within normal limits. Although she has arthritis of back and extremities, the range of motion is not seriously impaired. There is [sic] no joint deformities or effusion in major extremities.” He concluded that “claimant’s impairment(s) does not meet or equal the level of severity described in the listing of impairments . .. . ”
. Dr. Mitchell stated that he could not “eliminate the possibility of minimal osteoarthritic changes in the spine, hands and shoulders” in the future. However, he found no evidence “of a degree of lumbar nerve root compression which would be so painful as to preclude all forms of work activity, nor which when considered in combination with the diagnoses by the psychiatrist would equal the Listings.”
. See, e. g., Veal v. Califano, 610 F.2d 495, 497-98 (8th Cir. 1979); Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir. 1977); Martin v. Secretary of HEW, 492 F.2d 905, 907-908 (4th Cir. 1974).
. The agency is free to take account of the amount, and nature, of underlying clinical support, see notes 4 and 5 supra, in determining the weight to give to the statements of Dr. Colon and Dr. Zamora declaring plaintiff to be disabled. See 20 C.F.R. § 404.1527 (Aug. 20, 1980): “[A] statement by your physician that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are disabled. We have to review the medical findings and other evidence that support a physician’s statement that you are ‘disabled.’ ”
. The Secretary’s regulations do not require the agency or the courts to consider the reports of medical advisers as “evidence.” Rather, after stating that “medical findings in the evidence” must be supported by “medically acceptable clinical and laboratory diagnostic techniques,” 20 C.F.R. § 404.1526 (Aug. 20, 1980), the regulations state: “We will also consider the medical opinion given by one or more physicians ... in deciding medical equivalence.” Id. In a slightly different context, the Supreme Court has noted that a medical adviser is a “neutral” physician “used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner.” Richardson v. Perales, 402 U.S. 389, 408, 91 S.Ct. 1420, 1430, 28 L.Ed.2d 842 (1971). This matter is of little importance, however, for the advisers’ opinions here can be considered as part, but not all, of the supporting evidence.
. Dr. Mitchell graduated from the George Washington School of Medicine and practiced orthopedic surgery for twenty-six years. Dr. Ramirez Fuentes attended medical school in Spain and has served as a practicing and consulting psychiatrist in both the private and public sectors.
. Moreover, had plaintiff sought to cross-examine these two advisers, she could have moved to reopen the hearing and requested subpoenas for their attendance. 20 C.F.R. § 404.926 (1980); see Richardson v. Perales, 402 U.S. 389, 404-05, 91 S.Ct. 1420, 1429, 28 L.Ed.2d 842 (1971). On this general subject, plaintiff commented at oral argument that, due to an oversight, she did not receive Dr. Mitchell’s report until the decision of the Appeals Council had issued. However, we need not address this point; plaintiff did not seek a supplemental hearing when she actually received the report, did not voice an objection during the district court proceedings, and has not raised the issue on appeal.
. The agency actually has considered the opinions of nine doctors, since the two Disability Unit examiners who initially evaluated and rejected plaintiff’s claim were both physicians.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. James Campy IRBY, Appellant.
No. 8485.
United States Court of Appeals Fourth Circuit.
Argued March 20, 1962.
Decided May 22, 1962.
A. Andrew Giangreco, Alexandria, Va., for appellant.
Plato Cacheris, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.
Before SOPER, HAYNSWQRTH and J. SPENCER BELL, Circuit Judges.
SOPER, Circuit Judge.
James Campy Irby appeals from a judgment of the District Court rendered on October 6, 1961 whereby he was sentenced to a fine and imprisonment for violation of the Federal Narcotic Acts after he had been found guilty as charged in two counts of an indictment. The first count charged that on March 31, 1961, at the Washington National Airport, in violation of 21 U.S.C.A. § 174, Irby received, concealed and transported 11.7 ounces of heroin knowing that the drug had been imported into the United States contrary to law. The second count charged that on March 31, 1961, in violation of Section 4704(a) of the Internal Revenue Code, 26 U.S.C. § 4704(a), he had purchased, sold and distributed 11.7 ounces of heroin which was not in the original stamped package. On each count he was sentenced as a second offender to imprisonment for a period of 20 years and fined $1000, the sentences to run concurrently. Information furnished to the court pursuant to Section 7237 (c) of the Internal Revenue Code, 26 U.S.C. § 7237(c) showed that the 'defendant, on May 16, 1946, had pleaded guilty to the violation of 21 U.S.C.A. § 174, and had been sentenced to imprisonment for the period of 15 months to 4 years and fined $10.00.
Irby was arrested on March 31, 1961 at the Washington National Airport by Federal Narcotic Agents stationed in Washington, who acted without a warrant of arrest upon information furnished them by Federal Narcotic Agents stationed in New York. He was searched and 10 packets of heroin were found upon his person. This evidence was used against him at the trial. Reversal of the judgment is sought on the ground that the evidence was obtained through an illegal arrest and search of the person without a warrant of arrest and without probable cause. Prior to the trial the defendant moved the court to suppress the evidence on this account but the motion was over-ruled. The correctness of this ruling is the subject of this appeal.
Authority to make arrests without a warrant for violation of any law of the United States relating to narcotic drugs was conferred upon the agents of the Bureau of Narcotics, of the Department of the Treasury, by the Act of July 18, 1956. Chapter 629, § 104(a), 70 Stat. 570, codified as Section 7607 of the Internal Revenue Code, 26 U.S.C. § 7607. It provides that such agents may “make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation.” Hence, the question for decision on this appeal is whether the District Judge was justified in finding that the agents in this case, at the time of the arrest, had reasonable grounds to believe that he had committed or was committing a violation of the narcotic statutes. The evidence presented to the Judge on this point may be summarized as follows.
The Washington agents had knowledge of Irby’s prior conviction for violating the Narcotic Act in 1946, and they had had him under intermittent surveillance since 1958, and had seen him in contact with other violators of the narcotic statutes at various times, most recently within a month of the date of his arrest. In March 1961, prior to the arrest, narcotic agents stationed in New York received information about Irby from one Worth-ington Albert Alston who had previously sold narcotic drugs to an under cover Federal agent and had thereafter become a special employee of the Narcotics Bureau as an unpaid informer. The information related to Irbyjs activities in dealing with narcotics and specifically to a trip which Irby was to make from Washington to New York by air on March 31 in order to get narcotics and return with them to Washington. On March 30 the New York agents communicated with the Washington agents and told them of the planned journey and that Irby would leave the Washington airport on the morning of March 31 by plane of American Airlines due to arrive at New York at 11:48 A.M. As a result of this information the Washington agents were awaiting Irby at the airport and saw him purchase a round-trip ticket to New York on the flight predicted, under the assumed name of “C. Green”, and take the plane. The time of his return could not be determined as Irby had not made a return reservation. The Washington agents then telephoned this information to the office of the narcotics agents in New York. Agents from the New York office met the plane upon its arrival at the La-Guardia Airport in New York City and followed Irby to 461 Central Park West in New York City, which was known to them as a place where many violators and suspected violators of the narcotic laws were accustomed to meet. They saw him leave the place about 2 o’clock in the afternoon but lost him and then picked him up again at about 3:30 P.M. at the Airport and saw him board a plane for Washington, D. C. They telephoned this information to the Washington agents who met the plane upon its arrival in Washington and arrested Irby and found the drugs upon his person as above set out.
Evidence of these facts was presented to the District Judge at the hearing of the motion to suppress the evidence. In addition, he was shown the record of his court in a criminal case in which Alston had been indicted in December 1960 for making a false claim against the United States. This record showed that on motions of the United States and of Alston’s attorney filed in this case in January 1961 Alston was committed to the St. Elizabeth’s Hospital in the District of Columbia to be examined in respect to his mental competency on the ground that he was a pathological liar and an anti-social maladjusted person who was unable to adjust himself to prevailing social standards and had been discharged from the United States Army for unfitness and had inflicted a gun shot wound upon himself with suicidal intent. A report of the superintendent of the hospital, under date of March 15,1961, showed that after intensive study of the case by the psychiatric staff of the hospital, it was concluded that Alston was mentally competent to understand the proceedings against him and to assist properly in his own case. The record in the case also showed that when Alston was called for trial on September 11, 1961 he did not respond, and on October 19, 1961 his bail was forfeited.
It is the contention of the defendant that upon this testimony the District Judge should have granted the motion to suppress the evidence gained by the arrest on the ground that the information upon which the agents acted in making the arrest was unreliable and unworthy of belief because it was obtained solely from Alston who was known to be mentally sick as well as a pathological liar. Our examination of the testimony leads us to a different conclusion. It was known to the agents in Washington that Irby had a criminal record in the narcotic field and had been consorting with ■violators of the Narcotic Acts, and hence, when they received information of his impending trip to New York, it was proper and natural that they should investigate. It was known at the same time to the New York agents that Alston had contacts with the illicit trade and had been given informal employment as a special employee or informer to assist in the enforcement of the statutes. It was reasonable and proper, therefore, that they should pass on to the Washington agents the information acquired with respect to Irby’s trip and that they should cooperate in the investigation by following Irby when he arrived in the city. Moreover, it was ascertained before the arrest was made that the specific information given by Alston as to Irby’s trip to New York and return was entirely accurate since Irby did go by air to New York on the very flight reported and visit a place with an unsavory reputation as a hangout for narcotic violators, and did return to Washington the same day as had been foretold. In addition, he made the trip under an assumed name. Obviously, there was not only ample ground for the judge to conclude that the agents had reasonable grounds to believe that Irby was committing a violation of the law but it is difficult to see how any other decision could have been made. It is of little moment that Alston was shown to be a man of unstable character and credibility. It is from persons of this type rather than from the law-abiding that information as to the violation of the law is likely to be obtained, and in this instance the information was tested and found to be correct in important details before the arrest was made.
The case at bar in general outline is not unlike that considered in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, where a possessor of narcotic drugs was arrested and searched without a warrant by narcotic agents when he alighted from a railroad train, as had been foretold by a special employee or informer of the Bureau of Narcotics, whose previous reports had been found to be accurate and reliable. Quoting the provision of 26 U.S.C. § 7607, which authorizes narcotic agents to make arrests without warrant if they have reasonable grounds to believe that the person to be arrested has committed or is committing a violation of the Narcotic Laws, the court pointed out that “reasonable grounds” in the statute has the same meaning as “probable cause” in the Fourth Amendment, and sustained the arrest. It held that the agents had the right to rely upon the hearsay information furnished by the informer, who had been previously found to be reliable, especially as in pursuing the information furnished in the particular instance they spied a man, who corresponded in appearance to the informer’s description, alight from a train at the place the informer had foretold. Stating the rule to be applied in such cases the court said, page 313, 79 S.Ct. page 333:
“ ‘In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra, [338 U.S. 160] at 175 [69 S.Ct. 1302, at page 1310, 93 L. Ed. 1879], Probable cause exists where ‘the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 69 L.Ed. 543].”
In the case at bar there was no explicit testimony that the information previously furnished by the special employee had proved to be accurate, but the agents had used the man previously and obviously had enough faith in him to put his lead as to Irby to the test, and since his information proved correct in essential details, its reliability was established before the arrest was made.
The additional contention is made, seemingly based on Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, that the arrest and search of Irby were illegal since the agents had ample time to secure a warrant of arrest but failed to do so. This contention cannot be sustained. Narcotic agents, as we have seen, are clothed by Section 7607 I.R.C. with general authority to make arrests without warrant upon probable cause. See Miller v. United States, 357 U.S. 301, 305, Note 4, 78 S.Ct. 1190, 2 L.Ed.2d 1332. The authority is similar to that conferred upon agents of the Federal Bureau of Investigation of the Department of Justice, and other government officers, by 18 U.S.C. §§ 3052 and 3053. The Fourth Amendment does not require arresting officers clothed with such authority to procure a warrant of arrest, even if it is practicable for them to do so, but they may act without a warrant if they have reasonable grounds to believe that a felony has been committed or is being committed.
Reliance on Trupiano is misplaced. In that case it was held that Federal agents who detected a man operating an illicit still were not justified in seizing contraband articles on the premises where the arrest was made without a search warrant which they had had ample opportunity to obtain. In the course of the opinion, however, it was said, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663, that the arrest of the operator of the still was valid and that the absence of a warrant of arrest, even though there was sufficient time to obtain one, did not destroy its validity. Subsequently, in United States v. Rabinowitz the limitation set forth in Trupiano on the right of arresting agents to seize contraband property in the course of a lawful arrest was withdrawn. It was stated, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653, that an arrest is valid even without a valid warrant if the arresting officers have reasonable grounds to believe that a felony is being committed in their presence, and it was further held that the validity of a search in connection with an arrest without a warrant is not dependent solely upon the practicability of procuring a warrant in advance. The court said, 339 U.S. 65, 70 S.Ct. 435:
“It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. To the extent that Trupiano v. United States, 334 U.S. 699 [68 S.Ct. 1229, 92 L.Ed. 1663], requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances—the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual’s right of privacy within the broad sweep of the Fourth Amendment.”
The judgment of the District Court is affirmed.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INSTRUMENT CORPORATION OF AMERICA, Respondent.
No. 82-1408.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1983.
Decided Aug. 4, 1983.
Lawrence S. Wescott, Baltimore, Md. (Peter E. Keith, Venable, Baetjer & Howard, Baltimore, Md., on brief), for respondent.
Frances H. O’Connell, Washington, D.C. (Allison W. Brown, Jr., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Gen. Counsel, Washington, D.C., on brief), for petitioner.
Before RUSSELL and ERVIN, Circuit Judges, and FIELD, Senior Circuit Judge.
ERVIN, Circuit Judge:
In this case, the National Labor Relations Board seeks enforcement of its order directing Instrument Corporation of America (“ICA” or “the Company”) to cease and desist from practices prohibited under section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3), and to reinstate, with back pay, five former employees discharged allegedly for union organizing activities. An administrative law judge for the NLRB found that ICA wrongfully discharged Lynn Brown, Frank Ferrell, Fay Gray, Grace Harry, and Richard Schucker for engaging in protected activities. A panel of the NLRB affirmed, adopting the opinion of the ALJ. On the basis of substantial evidence in the record which sustains the ALJ’s findings, we now grant enforcement as to Brown, Ferrell, Gray, and Harry. However, we deny enforcement as to Schucker.
I.
Instrument Corporation of America manufactures electronic stencil cutters. The Company’s facility in Baltimore is divided into three departments — mechanical assembly, electrical assembly, and testing — each with its own supervisor. The physical layout of the facility fosters intermingling of all employees and supervisors: everyone works in a single room which also serves as a common lunch area, and the adjacent parking lot is used by employees and supervisors alike.
During the period relevant to this case the Company employed around twenty-five production and maintenance employees. Up until May 13, 1980, Lynn Brown and Frank Ferrell worked as mechanical assemblers. Fay Gray and Grace Harry were employed in the electrical assembly department. Richard Schucker was a tester until his dismissal on May 16, 1980.
In the fall of 1978, a group of ICA employees became disenchanted with management policies. Fay Gray suggested that the local chapter of the International Brotherhood of Electrical Workers (“IBEW”) be contacted. Soon thereafter, three employees called on Local 24 of the IBEW and obtained union authorization cards. The three were Frank Ferrell, Robert Drummond, and Paul Bosnick, Jr., the son of ICA’s manufacturing manager. Bosnick later told his father that he, Ferrell and Drummond had visited Local 24.
IBEW Local 24 conducted an organizing drive at ICA during the last few months of 1978 and managed to secure enough authorization cards to file a petition for representation with the NLRB on January 15, 1979. Pursuant to a stipulation with the Company, an election was set for March 23, 1979.
During the nine-week campaign that followed, employees Lynn Brown, Ferrell, Gray, Harry, and Schucker attended several union rallies at which plant supervisors were also present. These meetings were held after hours; employees desisted from campaign activities — including the distribution of union literature and the wearing of partisan buttons — during the work day.
Opposition to the union was personally led by the president of the Company, J. David Bryan. He wrote several open letters to employees warning of the drawbacks of unions. He held a grievance session for employees at which Lynn Brown, Ferrell, Gray, and Schucker voiced dissatisfaction over company policies. In management meetings Bryan instructed supervisors to speak out against the union with employees and to report back to him with information on the campaign. No evidence demonstrates, however, that Bryan specifically solicited the names of union partisans from supervisors.
Three witnesses for the NLRB testified at the proceedings below that Bryan threatened to “farm out” the Company’s contracts rather than “answer to a union.” This statement was alleged to have been made at a management meeting attended by supervisors Mary Brown and Daisy Wenk. Mary Brown reported the comment to Lynn Brown, and Wenk relayed it to Fay Gray. The testimony of Mary Brown, Lynn Brown, and Gray pertaining to Bryan’s threat is contradicted by Paul Bosnick, ICA’s manufacturing manager, who was present at the meeting where the statement was allegedly made, and Bryan himself. Both men claim no such comment was made.
In the March 23 election, the IBEW was defeated by two votes, 14 — 12. Following the election, employee Frank Ferrell requested a meeting with Bryan to discuss wage policies. At the meeting, Ferrell and Lynn Brown registered complaints over prevailing practices at the Company. Three other employees were also present at the meeting who are still employed by the Company.
Eleven months later in February, 1980, ICA suffered a severe economic setback when the purchaser of 90% of the Company’s product, Gestetner Co., demanded modification of the supply contract between them. Bryan agreed to a suspension of shipments of stencil cutters for the months of March through May, followed by normal shipments in July and August, followed by reduced shipments for the duration of the year. From December 31, 1979 to April 31, 1980, ICA’s accounts receivable fell by 70%, and its cash on hand dipped by 37%. Faced with these difficulties, Bryan claims to have met with manufacturing manager Paul Bosnick in March, 1980 for the purpose of paring the workforce by 15%. Although at least one employee had been told that layoffs, if ever required, would fall according to seniority, those ultimately dismissed— Mary Brown, Lynn Brown, Ferrell, Gray, and Harry — reflected tenures of varying length at the Company. President Bryan offered economic reasons for the selection of each laid off employee; the NLRB argues, of course, that it was the pro-union sympathies of the individuals tapped that motivated their dismissal.
The layoffs claimed to have been decided upon in March were not implemented right away. Bryan maintains this is because he hoped to find alternative purchasers during an impending trip to Brazil and Venezuela that would avoid the necessity of layoffs.
In April, while Bryan was away in South America, a new union organizing drive was begun. Employees Ferrell and Schucker obtained authorization cards from Local 24 which they distributed in the plant parking lot to their fellow workers before and after hours and during lunch. On April 28, the union filed a new petition for representation.
Bryan returned to Baltimore on May 7, his quest for new business having proved fruitless. On May 8, he learned of the new petition for representation. On May 12, Bryan, who had entered the hospital for surgery, directed the permanent layoffs of Mary Brown, Lynn Brown, Ferrell, Gray, and Harry. The five were dismissed on May 13.
That same day, Richard Schucker walked off his job at lunchtime, failing to return until 5:00 P.M. Schucker, who had been employed at ICA for one year and eight months, had a history of absenteeism. He even received a notice of dismissal in January, 1980, on account of his spotty attendance, but his job was saved when a supervisor resigned that month. Although Schucker’s hours were more flexible than the assembly line workers’ at ICA, he was expected to put in forty hours a week, which he had not met since January, 1980. Prior to leaving the plant on May 13, Schucker indicated to his supervisor, Robert Sikora, that he intended to take some vacation time that week. However, he did not tell Sikora that he planned to take off that afternoon. When Schucker reappeared at 5:00 P.M., Sikora demanded an explanation and apparently agreed to count Schucker’s afternoon recess as vacation time. President Bryan felt differently, however, for when he learned three days later of Schucker’s conduct, he ordered that Schucker immediately be fired. Sikora carried out this order on May 16. Schucker had been a vocal union sympathizer, and so he asked Sikora whether his dismissal was prompted by his union activities. Sikora replied it was not.
According to Bryan, the policy at ICA was that all layoffs were permanent, so that if business improved the Company could choose between hiring new employees at base wage rates or rehiring laid off employees at their former wage levels. In the months following the May layoffs, several new employees signed on at ICA; hone of the five discharged employees were invited to return. A summer spurt in business led the Company to subcontract work with employees at premium overtime wages.
On June 6,1980, the second union election again brought defeat for the IBEW, this time by a margin of 10-7. Seven challenged votes were lodged, including five registered by the employees laid off in May. Due apparently to his ill health, Bryan did not play an active role in the campaign leading up to June 6.
Shortly after the dismissals at issue, the union filed unfair labor practice charges with the National Director of the NLRB. Eventually, an administrative law judge found that the dismissals of Lynn Brown, Ferrell, Gray, Harry, and Schucker were largely motivated by anti-union animus, not valid business justifications. This is the ruling we are asked to review.
II.
In opposing the NLRB’s petition for enforcement of its order, ICA contends that the administrative law judge misallocated the burdens of proof, forcing the Company to prove it would have discharged the employees even in the absence of protected conduct, rather than requiring the Board to show that union activity was a “but for” cause of the dismissals.
A close reading of the ALJ’s opinion discloses no misassignments of proof. In this circuit, “the burden is on the General Counsel throughout to show that a discriminatory motive retaliative against the exercise of protected activity was a factor for the discharge.”. NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485, 490 (4th Cir. 1981). See also Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 569 (4th Cir.1977). This burden requires General Counsel to do more than present evidence of union membership or concerted activities where the employer offers a valid reason for employee dismissals. Kiawah Island, 650 F.2d at 491. When confronted with evidence of a legitimate business motive, General Counsel must prove by a preponderance of the evidence that union antipathy did actually play a part in the decision to discharge employees. Id. In deciding the factual question of motive, it is not enough for the Board simply to declare that the reasons offered by the employer were pretextual; the Board must advert to tangible evidence demonstrating why the good motive was not the sole reason for the discharge. Id. It goes without saying that because the task of proving an employer’s motive is difficult, the Board may rely on circumstantial evidence presented by General Counsel in establishing that anti-union animus figured in the employer’s actions, provided that the circumstantial evidence is substantial and the inferences drawn therefrom reasonable.
We believe that the ALJ correctly applied these rules of law in finding that ICA acted, at least in part, out of anti-union animus in discharging Brown, Ferrell, Gray, and Harry. Nowhere does it appear in the decision of the ALJ that General Counsel was relieved of the ultimate burden of proving that a discriminatory motive was a factor for the discharges. And, since the question of motive is one of fact, we are limited on review to an inquiry into whether substantial evidence exists to support the ALJ’s findings. As discussed below, we are satisfied that, taking the evidence as a whole, the ALJ (and the Board) could reasonably conclude that anti-union hostility played a part in the terminations of Brown, Ferrell, Gray and Harry.
III.
On review of this petition for enforcement, we must decide whether, based on the entire record before us, substantial evidence sustains the Board’s conclusion that the dismissals of Lynn Brown, Ferrell, Gray, Harry, and Schucker were partly or wholly motivated by the purpose of discouraging union activities at ICA. Jeffrey Manufacturing Division, etc. v. NLRB, 654 F.2d 944, 948 (4th Cir.1981). The question of motive is one of fact, and the Board’s determination will not be overturned if its conclusions drawn from credibility findings and inferences from the evidence are reasonable. NLRB v. Comgeneral Corp., 684 F.2d 367, 369 (6th Cir.1982). Where the Board’s conclusions are reasonable, it does not matter that we might have reached a different result had we been the factfinders. Jeffrey Manufacturing Co., 654 F.2d at 948. Of course, as we have stated before, the mere fact that a union partisan was discharged during a union campaign does not make out a violation of section 8(a)(3) if a supportable cause for the dismissal appears. Id. Furthermore, mere speculation as to the Company’s real motives “register[s] no weight on the substantial evidence scale.” TRW, Inc. v. NLRB, 654 F.2d 307, 312 (5th Cir.1981).
Having examined the record, we are satisfied that with regard to Lynn Brown, Ferrell, Gray, and Harry the evidence supports the Board’s conclusion that ICA acted at least in part out of malice toward the union, and that the business justification advanced by the Company was pretextual or, at best, was not the sole reason for the layoffs. The dismissals came only days after Bryan learned of a petition for union representation on May 8, 1980. All of the employees discharged on May 13 had demonstrated varying degrees of discontent with management and sympathy with the union. Lynn Brown, Ferrell, Gray, and Harry were each vocal with their grievances throughout 1979. All four employees dismissed on May 13 had unblemished work records. This contrasts with cases cited by ICA such as NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 992 (4th Cir. 1979) (no violation of section 8(a)(3) where employer terminated four union sympathizers with poor work records), NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485, 491 (4th Cir.1981) (company justified in firing employee responsible for poor sanitation results; no violation of section 8(a)(3)), Burlington Industries, Inc. v. NLRB, 680 F.2d 974, 976-77 (4th Cir.1982) (no violation of section 8(a)(3) where previously warned employee committed repeated infractions of company rules), and NLRB v. Burns Motor Freight, Inc., 635 F.2d 312, 314 (4th Cir. 1980) (truck driver laid off after receiving speeding citations; enforcement of section 8(a)(3) order denied). Nor did the layoffs fall according to seniority. Although no direct evidence appears that ICA management knew the names of union partisans, ample circumstantial evidence permits that inference. Only about twenty-five persons comprised the work force at ICA during 1979 and 1980. According to the credited testimony of Mary 'Brown, supervisors were ordered to report to management on union activities during the 1979 campaign. Lynn Brown, Ferrell, Gray, and Harry made no secret of their displeasure with management, even in Bryan’s presence. The smallness and openness of the plant further made it unlikely that union allegiances would remain secret. ICA’s official policy of considering all layoffs to be permanent nevertheless held out the possibility that experienced senior people would be rehired, yet not one of the four employees laid off on May 13 was called back when positions came open as the economic picture brightened. This is additional evidence of improper motive.
In the proceedings below the Company countered this evidence of unfair labor practice with assertions of business necessity. The Company did suffer significant economic injury in the winter of 1980. Reasons were offered for the particular selection of each employee discharged. The Company points out that Mary Brown, who was dismissed along with the four complainants on May 13, was a supervisor ineligible to vote in a union election, while Lynn Brown, who did not vote for the union in 1979, was also terminated. The Company also notes that several employees who evidently voted for the union in 1979 were kept on the work force. One known union activist, Robert Drummond, was even promoted to supervisor.
We are unable to say that the Board unreasonably- found this evidence insufficient to prove the dismissals would have occurred even in the absence of pro-union activities. See Jeffrey Manufacturing, 654 F.2d at 948. As noted in the opinion of the ALJ, the work force was small and the elimination of four likely votes for the union in the impending June election could have made the crucial difference where the Company’s margin of victory in 1979 was only two votes. The ALJ further noted the potential chilling effect of these dismissals on others inclined to favor the union. Further undermining the Company’s exeuse is the ALJ’s express finding that Bryan testified falsely that the dismissals were decided upon two months before being carried out. This finding is supported by a letter introduced by General Counsel dated June 19, 1980 from ICA’s counsel to the Regional Director of the NLRB in which Bryan is described as selecting the individuals for dismissal between May 7 and May 9, after the second election petition was filed.
Nor is the finding of anti-union animus defeated by evidence that some union activists were not fired. “[A] discriminatory motive, otherwise established, is not disproved by an employer’s proof that it did not weed out all union adherents.” Nachman Corporation v. NLRB, 337 F.2d 421, 424 (7th Cir.1964). The fact that Bryan did not fire some of the principal activists could simply mean he felt their skills too valuable to lose.
In short we find substantial evidence adduced by General Counsel to support the Board’s conclusion that management knew the identities of union sympathizers, and that the May 13 layoffs were provoked at least in part by that knowledge rather than by proper business motives alone. On the weight of the evidence, the Board reasonably could have concluded that the Company acted out of malice toward the union, and that its business justification was not the sole reason for the discharges.
IV.
The case of Richard Schucker stands in a wholly different light. Schucker had long been a problem employee when he was fired on May 16. Like his fellow complainants, Schucker took a prominent role in union activities, and knowledge of those activities may be imputed to the Company. However, he had also been the subject of a notice of dismissal in January, 1980 for chronic truancy from work; his job was saved only by the unexpected departure of a supervisor who left the department shorthanded. Throughout the next four months, Schucker’s work attendance remained spotty; his final termination on May 16 followed closely on the heels of a five hour absence from the plant on the afternoon of May 13. The Board has not, in our view, shown that Schucker’s union activities played any part in the decision to terminate him. As we stated in Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir.1977):
The rule is that if the employee has behaved badly it won’t help him to adhere to the Union, and his employer’s anti-union animus is not of controlling importance.
Accordingly, we deny enforcement of that part of the NLRB’s order reinstating Schucker.
V.
In light of the foregoing review, we grant enforcement of the Board’s order reinstating Lynn Brown, Frank Ferrell, Fay Gray, and Grace Harry, but deny enforcement as to Richard Sehucker.
ENFORCEMENT GRANTED IN PART AND DENIED IN PART.
. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1) (1976). Section 157 provides in part that “employees shall have the right to self-organization, to form, join or assist labor organizations ... and to engage in other concerted activities for ... other mutual aid or protection....” 29 U.S.C. § 157 (1976).
Section 8(a)(3) makes it an unfair labor practice for an employer “to encourage or discourage membership in any labor organization” by “discrimination in regard to hire or tenure of employment or any term or condition of employment” 29 U.S.C. § 158(a)(3) (1976).
. Mary Brown is the mother-in-law of Lynn Brown. Mary Brown was laid off on May 13, 1980, along with her daughter-in-law, Frank Ferrell, Fay Gray, and Grace Harry. Mary Brown was the only supervisor to be terminated and her dismissal is not at issue in this enforcement proceeding since supervisors are not covered by the National Labor Relations Act. Mary Brown did testify against the Company in the hearing below.
. The Company somewhat recovered its position in the ensuing months.
. According to Bryan, Mary Brown was laid off because Bryan and Bosnick felt other supervisors less highly paid could cover her duties. Ferrell and Lynn Brown performed functions that could be accomplished by lower paid workers. Gray and Harry each performed one specialized function which it was felt could be handled by more versatile employees.
. ICA’s argument that it could not be assigned the burden of proving it would have discharged the employees even if they had not sided with the union is nullified by the recent pronouncement in NLRB v. Transportation Management Corp., - U.S. -, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). In Transportation Management, the Supreme Court ended two years of controversy engendered by the case of NLRB v. Wright Une, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), ruling unanimously that once General Counsel proves by a preponderance of the evidence that a discharge was based in whole or in part on anti-union animus, the employer will be held to have violated section 8(a)(1) and (3) of the National Labor Relations Act unless the employer can prove as an affirmative defense by a preponderance of the evidence that the worker would have been fired even if he or she had not been involved with the union. This holding is consistent with our long-standing rule, discussed in the text infra, that to establish a violation of section 8(a)(3), General Counsel has the burden “throughout to show that a discriminatory motive retaliative against the exercise of protected activity was a factor for the discharge.” NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485, 490 (4th Cir. 1981). In this case, substantial evidence indicates that the General Counsel met its burden of proving that anti-union animus was a factor in the dismissals and that ICA failed to show the same action would have taken place even in the absence of the protected activity.
. We acknowledge our precedents applying different language to the inquiry into motive. We have often held that where the employer asserts proper business justification for employee layoffs, the Board must find “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one and ... present a substantial basis of believable evidence pointing toward the unlawful one.” American Manufacturing Association, Inc. v. NLRB, 594 F.2d 30, 36 (4th Cir.1979), quoting Firestone Tire & Rubber Co. v. NLRB, 583 F.2d 1268, 1273 (4th Cir.1978). See also McLean Trucking Co. v. NLRB, 626 F.2d 1168, 1169-70 (4th Cir.1980); NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 993 (4th Cir.1979). Admittedly, some superficial discrepancy appears between this analysis and our long-standing rule that anti-union animus need only be shown to have been a factor in employee layoffs. But as we wrote in Kiawah Island,
[a]ny apparent tension between the Neptune language and that of Appletree is eased when the basic proof structure under the NLRA is considered. An appellate court must affirm the Board-determined unfair labor practices when they are supported by substantial evidence. ... In determining whether there is substantial evidence to support a Board finding that bad motive was a “factor” in an employment discharge, we, of course, must look to all the evidence, including the employer’s evidence of proper motivation. Should the Board have failed to identify and weigh the latter evidence, it will have failed its mission as a fact-finder.
650 F.2d at 491 (citations omitted). We note also that the language of American Manufacturing Association and Appletree, while useful in the evaluation of employer justifications that smack of sham or pretext, is less apt where the evidence genuinely appears to make out the co-existence of a lawful motivation and an unlawful one. See Neptune Water Meter Co., 551 F.2d at 569. We decline to consider the impact of NLRB v. Transportation Management, - U.S. --, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), see n. 5 supra, on American Manufacturing Association and Appletree.
. The Company argues that events occurring more than six months prior to the filing of the employees’ complaint with the NLRB in 1980 cannot be considered in assessing ICA’s knowledge of union sympathizers. See 29 U.S.C. § 160(b) (1974). We reject this position. In Local 1424, IAM v. NLRB, 362 U.S. 411, 416-417, 80 S.Ct. 822, 826-827, 4 L.Ed.2d 832 (1960), the Supreme Court held that “where the occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices ..., earlier events may be utilized to shed light on the true character of matters occurring within the limitations period.” Here, the dismissals came well within the six-month limitations period under circumstances suggesting a violation of section 8(a)(3). The events of 1979 were admissible to shed light on ICA’s motive for discharging the five employees. See Darlington Manufacturing Company v. NLRB, 397 F.2d 760, 769 (4th Cir. 1968), cert. denied, 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed.2d 567 (1969).
. The Company does not dispute that it had knowledge of Ferrell’s union activity, since Paul Bosnick, Jr. told his father that Ferrell had helped obtain union authorization cards in 1979.
. However, Lynn Brown did not vote for the union in 1979.
. The pertinent parts of the letter, which was acknowledged by Bryan, are as follows:
It became obvious to Mr. Bryan after the meeting on February 25 [with Gestetner] that the Company faced a drastic cutback in production unless something was done to increase sales. However, he delayed laying off anyone or taking any other action until he had an opportunity to determine if additional orders would be obtained elsewhere....
[Before] entering the hospital on the following Monday [after his return from South America], it was necessary for Mr. Bryan to decide between May 7 and May 9 on the size of the layoff and to determine who would be laid off....
[After his return from South America,] Mr. Bryan took the only action open to him, deciding between May 7 and May 9 on the number and identity of employees to be laid off.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_source
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F
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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.
AMERICAN MEDICAL ASSOCIATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. CONNECTICUT STATE MEDICAL SOCIETY and New Haven County Medical Association, Inc., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
Nos. 995, 1050, Dockets 79-4214, 79-4226.
United States Court of Appeals, Second Circuit.
Argued May 2, 1980.
Decided Oct. 7, 1980.
Newton N. Minow, Chicago, 111. (Sidley & Austin, Chicago, 111., Jack R. Bierig, Chicago, 111., on brief; Bernard D. Hirsh, B. J. Anderson, Chicago, 111., of counsel), for petitioner, American Medical Ass’n.
Linda L. Randell, New Haven, Conn. (Wiggin & Dana, New Haven, Conn. William J. Doyle, New Haven, Conn., on brief), for petitioners Connecticut State Medical Soc. and New Haven County Medical Ass’n., Inc.
Howard E. Shapiro, Deputy Gen. Counsel, F. T. C., Washington, D. C. (Michael N. Sohn, Gen. Counsel; March Coleman, L. Barry Costilo, David M. Fitzgerald, Linda A. Heary, Brenda M. Hull, Leslie R. Mel-man, Washington, D. C., on brief), for respondent, Federal Trade Commission.
Before MANSFIELD and TIMBERS, Circuit Judges, and BONSAL, District Judge.
Of the United States District Court for the Southern District of New York, sitting by designation.
BONSAL, District Judge:
The American Medical Association (“AMA”), the Connecticut State Medical Society (“CSMS”), and the New Haven County Medical Association, Inc. (“NHCMA”) petition for review of a Cease and Desist Order issued by the Federal Trade Commission (“FTC”) against AMA on October 12, 1979 (FTC Dkt. No. 9064). The Order requires AMA to cease and desist from promulgating, implementing, and enforcing restraints on advertising, solicitation, and contract practices by physicians and on the contractual arrangements between physicians and non-physicians. The FTC found that ethical standards issued by AMA were in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). The FTC cross-petitions for enforcement of its Order.
THE FACTS
AMA is an Illinois not-for-profit corporation first incorporated in 1897. Its membership is comprised of physicians, osteopaths and medical students, but most of its members are practicing physicians. As of December 31, 1974, 52.6% of the licensed physicians in the United States were members of AMA. AMA’s legislative body is its House of Delegates. Enactments of the House of Delegates become the official policy of AMA. In 1957 the House of Delegates approved the “Principles of Medical Ethics” consisting of a preamble and ten paragraphs. Interpretation of the “Principles of Medical Ethics” is made by AMA’s Judicial Council, a committee of the House of Delegates, and the decisions of the Judicial Council are set forth in the AMA publication, Opinions and Reports. The Judicial Council also is responsible for reviewing adjudications of state societies.
CSMS is the state medical society in Connecticut. A number of state medical societies originally formed AMA and membership in a state medical society is a condition to membership in AMA. 82% of Connecticut physicians are members of CSMS.
NHCMA is a local medical association. 71% of New Haven physicians are members of NHCMA. A New Haven physician must be a member of NHCMA in order to become a member of CSMS.
On December 19, 1975, the FTC filed a complaint against AMA, CSMS, and NHCMA charging them with restricting the ability of their members to advertise for and solicit patients and with interfering with the ability of their members to engage in contractual relationships with non-physicians. CSMS and NHCMA were included in the complaint on the ground that the state societies and local associations follow the lead of AMA and because the FTC believed that there was a conspiracy between AMA and the state societies and local associations to restrict competition among physicians through ethical limitations on advertising, solicitation and contractual relationships. Such restriction, in the view of the FTC, violated Section 5 of the Federal Trade Commission Act.
The FTC held hearings between September 7,1977 and May 5, 1978. On November 13, 1978, the administrative law judge, Ernest G. Barnes, issued his Initial Decision finding that the ethical practices complained of violated Section 5 of the Federal Trade Commission Act. On appeal of the administrative law judge’s decision to the FTC, the Commission affirmed and issued its Opinion and Final Order on October 12, 1979 (FTC Dkt. No. 9064) (“FTC Opinion”). The Final Order requires AMA to cease and desist from promulgating, implementing and enforcing restraints on advertising, solicitation and contract practices by physicians and on the contractual arrangements between physicians and non-physicians. Exception is made with respect to “false or deceptive” practices, and the Order provides that nothing contained therein prohibits AMA from
“formulating, adopting, disseminating to its constituent and component medical organizations and to its members, and enforcing reasonable ethical guidelines governing the conduct of its members with respect to representations, including unsubstantiated representations, that would be false or deceptive within the meaning of Section 5 of the Federal Trade Commission Act, or with respect to uninvited, in-person solicitation of actual or potential patients, who, because of their particular circumstances, are vulnerable to undue influence.”
The Order also requires AMA to disassociate itself from any state or local society that violates the terms of the Order.
PRELIMINARY ISSUES
Two preliminary issues have been raised by the petitioners: (1) that the FTC lacks jurisdiction over the petitioners, and (2) that Chairman Michael Pertschuk should have been disqualified because he had demonstrated through his public statements that he had prejudged key issues in the proceeding.
Jurisdiction over Petitioners
Petitioners contend that as nonprofit corporations, they are not subject to the jurisdiction of the FTC as set forth in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44, which defines “corporation” to include any entity “organized to carry on business for its own profit or that of its members.” The record satisfies us that the petitioners serve both the business and non-business interests of their member physicians. As long ago as 1902, AMA amended its Articles of Incorporation to provide that one of its objectives was to “safeguard the material interests of the medical profession.” The administrative law judge found that AMA actively lobbies for legislation that it believes may be for the profit of its members. He also found that AMA, in a variety of ways, including advice on insurance plans, renders business advice to its members.
The business aspects of the activities of the petitioners fall within the scope of the Federal Trade Commission Act even if they are considered secondary to the charitable and social aspects of their work. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 788, 95 S.Ct. 2004, 2013-14, 44 L.Ed.2d 572 (1975); FTC v. National Commission on Egg Nutrition, 517 F.2d 485, 488 (7th Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976).
Petitioners’ reliance upon Community Blood Bank of Kansas City Area, Inc. v. FTC, 405 F.2d 1011 (8th Cir. 1969), is misplaced. That case involved a blood bank run as a charitable organization. However, the court recognized that “Congress did not intend to provide a blanket exclusion of all non-profit corporations .... ” Id. at 1017.
The FTC fully considered the facts bearing on whether the petitioners’ activities included their business aspects. See FTC v. Ernstthal, 607 F.2d 488, 490 (D.C.Cir.1979). In addition, the Cease and Desist Order involves only advertising, solicitation and contractual relationships. We therefore conclude that the evidence in the record sustains the jurisdiction of the FTC. Disqualification of Chairman Pertschuk
During the FTC proceeding, the petitioners moved to disqualify Chairman Pertschuk on the ground that he had prejudged the merits of this proceeding before it came before the Commission. In support of this contention, petitioners cite a speech made by Chairman Pertschuk before the American Enterprise Institute’s Occupational Li-censure Conference on February 22, 1979 concerning the misuse of licensing procedures to restrain competition. However, no mention of this case was made, nor was there any reference to physicians as a group.
Chairman Pertschuk prepared a statement for presentation to the Subcommittee on Health and Scientific Research, of the United States Senate, on October 10, 1977, which was never presented because of the cancellation of the hearings. This statement discussed the medical profession in the context of a multitude of issues in the field of health care. The lone reference to this proceeding was that a complaint had been filed challenging portions of the Code of Ethics of AMA that “may” unduly restrain dissemination of information about physicians’ services. He stated that “[sjince these matters are currently in litigation, I hope you will understand why it would not be appropriate for me to comment further about them.”
Petitioners also refer to a speech made by Chairman Pertschuk before the Consumer Assembly on January 19, 1978 with respect to food and health care costs. He mentioned the trial of this case as one of the many activities being undertaken by the FTC in the medical care field.
We do not find that Chairman Pertschuk’s statements on these occasions, considered in their entirety, Kennecott Copper Corp. v. FTC, 467 F.2d 67, 80 (10th Cir. 1972), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974), approach the appearance of impropriety, the test applied in Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590-91 (D.C.Cir. 1970). Nor do we find that Chairman Pertschuk prejudged the facts and the law in this case before hearing it. Gilligan, Will & Co. v. SEC, 267 F.2d 461, 468 (2d Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959). At most, the public statements brought to our attention by the petitioners indicate that the chairman was informing the Congress and the public as to FTC’s activities and policies in general, FTC v. Cement Institute, 333 U.S. 683, 700-01, 68 S.Ct. 793, 803, 92 L.Ed. 1010 (1948), including those in the medical field. We do not find these statements to be grounds for disqualification.
LIABILITY
At the time the FTC filed its complaint in this action on December 19, 1975, AMA’s authoritative interpretation of the ethical restraints that are the subject of this action were contained in the 1971 edition of Opinions and Reports. Both the administrative law judge and the Commission detailed numerous examples of applications of the ethical restraints evidencing an anticompetitive purpose and effect. These included restrictions upon the dissemination of price information, bans upon advertisement of individual physicians’ services and alternative forms of medical care, and restraints upon particular forms of advertising. The Commission concluded that this evidence “is susceptible to no interpretation other than that ethical principles of the medical profession have prevented doctors and medical organizations from disseminating information on the prices and services they offer, severely inhibiting competition among health care providers.” FTC Opinion, at 29. The Commission further found that AMA’s contract practice restrictions had the purpose and effect of restraining competition by group health plans, hospitals, and similar organizations, and restricted physicians from developing business structures of their own choice. Id. at 41-43. Based upon our own review of the record, we conclude that these findings are supported by substantial evidence. See 15 U.S.C. § 45(c).
Petitioners contend that the ethical guidelines are merely to assist the state societies and the local associations; in other words, that they are advisory only. They point out that no formal action has been taken by AMA in these matters since 1955 in the appeal of Ben E. Landess where Dr. Landess was charged with “the indirect solicitation and procurement of patients by advertising.” Dr. Landess was the Medical Director of the Jamaica Medical Group, which had a contract with the Health Insurance Plan of Greater New York, Inc. (“H.I. P.”), which offers a form of prepaid medical coverage in the State of New York. H.I.P. advertises directly to the public. The Judicial Council of AMA adopted the report of the Queens County Medical Society that no action be taken against Dr. Landess. The Judicial Council went on to say that since the quality of its advertising is not in issue and “since Dr. Landess had nothing to do with the preparation or distribution of the advertising, it is our opinion contrary to that of the state and county medical societies that the conduct of Dr. Landess does not violate the ethic relating to solicitation and advertising.” Joint App. at 425.
In any event, the issue here is not whether AMA has specific power or authority over the state societies and local associations or, if it has, whether it exercises it. The issue is whether these groups have acted in concert to effectuate restraints on advertising and solicitation in violation of the Federal Trade Commission Act. It is this concerted activity for a common purpose that constitutes the violation. FTC v. Cement Institute, 333 U.S. at 709, 68 S.Ct. at 807. See National Society of Professional Engineers v. United States, 435 U.S. 679, 692-96, 98 S.Ct. 1355, 1365-68, 55 L.Ed.2d 637 (1978).
The record satisfies us that AMA intended and expected that the state and local medical groups would enforce the limitations on advertising and solicitation and, indeed, advised them as to how to do it. In other words, AMA limitations “provided the impetus” for the actions taken, and individual physicians “could be expected to comply in order to assure that they did not discredit themselves by departing from professional norms, and perhaps betraying their professional oaths.” Goldfarb v. Virginia State Bar, 421 U.S. at 791 n.21, 95 S.Ct. at 2015.
REMEDY
The Final Order of the Commission consists of six Parts, the first two being the Cease and Desist Orders, and the third and fourth being the notice and disaffiliation provisions. The Final Order is directed only to AMA, and not to CSMS or NHCMA.
Part I of the Order directs AMA to cease and desist from (A) restricting the advertising of services, facilities, or prices by physicians or organizations with which physicians are affiliated; (B) restricting the operation of any organization that offers physicians’ services to the public, by means of representations concerning the ethical propriety of medical service arrangements that limit the patients’ choice of a physician; and (C) inducing any physician or nongovernmental medical organization to take any of the prohibited restrictive actions. Part I expressly excludes from its prohibitions the dissemination by AMA of reasonable ethical guidelines concerning false and deceptive advertising and solicitation.
Part II of the Order directs AMA to cease and desist from (A) restricting or interfering with the consideration offered or provided physicians in return for the sale or distribution of their professional services; (B) restricting any organization that offers physicians’ services by means of representations concerning the ethical propriety of medical service arrangements that limit the patients’ choice of a physician; (C) restricting participation by non-physicians in the ownership or management of such organizations; and (D) inducing physicians or any organization from taking any of the actions prohibited by Part II.
Part III of the Order requires AMA in any proceeding involving violations of its ethical standards to provide (A) reasonable notice, (B) a hearing, and (C) written findings and conclusions.
Part IV of the Order requires AMA to (A) give written notice of the Order to its members and affiliate societies; (B) provide all new members and affiliate societies with a copy of the Order for a period of ten years; (C) remove from all of its publications and policy statements any provisions inconsistent with the Order; (D) require that all affiliate organizations, as a condition of affiliation, agree to adhere to the Order; and (E) disaffiliate for one year any constituent organization that engages in any act or practice prohibited by the Order. Post-Complaint Activities of AMA
Petitioners contend that the revisions of the ethical standards contained in the 1977 Opinions and Reports obviate any need to enter the Order herein. However, this does not constitute grounds for denying enforcement of an FTC order, see, e. g., Fedders Corp. v. FTC, 529 F.2d 1398, 1403 (2d Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), especially since the publication of the revisions occurred “only after the filing of the FTC complaint.” Great Atlantic & Pacific Tea Co. v. FTC, 557 F.2d 971, 988 (2d Cir. 1977) (emphasis in the original), rev’d on other grounds, 440 U.S. 69, 99 S.Ct. 925, 59 L.Ed.2d 153 (1979). In any event, the Commission can properly find, as it did here, that the revisions were insufficient.
Additionally, it is not clear that the 1977 revisions rescinded prior ethical standards. AMA has never announced to its members or affiliate societies that the 1971 ethical standards are no longer in effect. Moreover, nothing in the 1977 version of the Opinions and Reports indicates that it was intended to disavow prior standards. Rather, it refers with approval to the “long standing policy of the Judicial Council on advertising and solicitation by physicians.”. By referring to the established policies, AMA indicated that its positions may not have changed and that the restraints, “if abandoned at all, may be resumed.” FTC Opinion, at 57. See SCM Corp. v. FTC, 565 F.2d 807, 813 (2d Cir. 1977). Finally, it is well established law that it is within the discretion of the FTC to determine whether an order is “necessary to cope with the unfair practices found.” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 392, 85 S.Ct. 1035, 1046, 13 L.Ed.2d 904 (1965). We have determined that the FTC considered the changes and rationally assessed their significance in concluding that a cease and desist order was warranted. See SCM Corp. v. FTC, 565 F.2d at 812. See also FTC v. National Lead Co., 352 U.S. 419, 429, 77 5. Ct. 502, 509, 1 L.Ed.2d 438 (1957).
On July 22, 1980, AMA’s House of Delegates adopted a new version of the Principles of Medical Ethics. The most notable change is the removal of the ban on “solicitation” previously found in Section 5 of the Principles. The 1980 Principles instead require a physician to deal “honestly,” to expose doctors “deficient in character or competence,” and “to respect the rights ... of other health professionals.”
The elimination of the ban on solicitation which appeared in the 1957 version of the Principles reflects a significant and commendable effort to comply with the terms of the FTC order here under review. AMA does not, however, concede any legal obligation to make such changes, since it still denies any involvement in the unlawful restraints found by the FTC.
The language of the 1980 Principles is general and imprecise in nature. Moreover, the various written interpretations of the 1957 Principles previously promulgated by AMA remain in effect. In the absence of any interpretation of the 1980 Principles in AMA’s Opinions and Reports, we cannot find that the FTC’s claims are moot.
First Amendment
Petitioners contend that Part II of the Cease and Desist Order constitutes a prior restraint upon speech and impermissibly interferes with the right to freedom of association under the First Amendment. We disagree. The FTC determined that various restrictions which AMA imposed upon contract practices of physicians violated the FTC Act. These included ethical restraints upon so-called “closed panel” arrangements, upon the consideration paid physicians by health care organizations, and upon physicians’ arrangements with non-physicians. By its terms, the Order applies solely to “ethical” restraints, and thus does not affect any speech or other First Amendment rights except insofar as it applies to statements officially condemning contract practices. “Just as an injunction against price fixing abridges the freedom of businessmen to talk to one another about prices, so too the injunction in this case must restrict [AMA’s] range of expression on the ethics of [contract practices of physicians].” National Society of Professional Engineers v. United States, 435 U.S. 679, 697, 98 S.Ct. 1355, 1367, 55 L.Ed.2d 637 (1978). Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642 (1972) (right to freedom of association does not include the right to violate the law).
Overbreadth and Vagueness
Petitioners assert that the proviso at the end of Part I, which permits AMA to adopt “reasonable ethical guidelines governing the conduct of its members with respect to representations, including unsubstantiated representations, that would be false or deceptive within the meaning of Section 5 of the Federal Trade Commission Act,” is overbroad and vague. The proviso was inserted in the Final Order at the request of AMA because of the Commission’s “conviction that the AMA has a valuable and unique role to play with respect to deceptive advertising and oppressive forms of solicitation by physicians.” FTC Opinion, at 58. AMA asks that it be granted more leeway in determining what kinds of claims are deceptive and misleading without the chilling effect that the threat of fines and penalties could have on its regulation of false and deceptive advertising. The Commission recognizes the “ ‘special role’ of organized medicine ... [that] necessarily confers on AMA a measure of discretion to develop ‘principles of conduct.’ ” FTC Brief at 109, quoting Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977). In view of the foregoing, we will amend the proviso by inserting the words “respondent reasonably believes” so that the concluding paragraph of Part I will read as follows:
“Nothing contained in this Part shall prohibit respondent from formulating, adopting, disseminating to its constituent and component medical organizations and to its members, and enforcing reasonable ethical guidelines governing the conduct of its members with respect to representations, including unsubstantiated representations, that respondent reasonably believes would be false or deceptive within the meaning of Section 5 of the Federal Trade Commission Act, or with respect to uninvited, in-person solicitation of actual or potential patients, who, because of their particular circumstances, are vul(modifinerable to undue influence.” cation emphasized)
Additionally, petitioners contend that Part II-A of the Order requires AMA to cease and desist from “advising on the ethical propriety of, or interfering with the consideration offered or provided to any physician in return for the sale, purchase or distribution of his or her professional services.” AMA points out that this provision is so broad as to impinge upon valid activity such as professional peer review of the fee practices of physicians. In apparent recognition of this and mindful of Judge Wisdom’s caveat that an FTC order “should not be drawn so broadly that it will cover legitimate practices,” Cotherman v. FTC, 417 F.2d 587, 596 (5th Cir. 1969), the Commission requests us to modify clause II-A of the Order to add the words “in any contract with any entity that offers physicians’ services to the public” following the word “physician.” This modification clarifies the meaning of the Order, especially in light of the administrative record herein. See, e. g., Trans World Accounts, Inc. v. FTC, 594 F.2d 212, 215 n.2 (9th Cir. 1979); National Commission on Egg Nutrition v. FTC, 570 F.2d 157 at 163 (7th Cir). However, in view of AMA’s contention in its reply brief that the Order is still overbroad, we will further modify the Order by adding the words “except for professional peer review of fee practices of physicians.” Thus, the clause, as modified, will read:
“Restricting, regulating, impeding, advising on the ethical propriety of, or interfering with the consideration offered or provided to any physician in any contract with any entity that offers physicians’ services to the public, in return for the sale, purchase, or distribution of his or her professional services, except for professional peer review of fee practices of physicians . ... ” (modifications emphasized)
The Disaffiliation Provision
Part IV of the Order requires AMA to disaffiliate for one year any state or local medical society that engages in acts or practices that would violate the Order if engaged in by AMA, and requires as a condition to affiliation that the state and local societies agree to adhere to the provision of the Order. Petitioners contend that this violates due process. However, this provision finds support in National Society of Professional Engineers v. United States, 435 U.S. at 697, 98 S.Ct. at 1367. The Order does not violate AMA’s right to due process since it bears a reasonable relationship to the unlawful practices found to exist. See, e. g., Jacob Siegel Co. v. FTC, 327 U.S. 608, 613, 66 S.Ct. 758, 760, 90 L.Ed. 888 (1946). See also United States v. International Boxing Club of New York, Inc., 171 F.Supp. 841, 842 (S.D.N.Y.1957), aff’d 358 U.S. 242, 245, 79 S.Ct. 245, 247, 3 L.Ed.2d 270 (1959). The Commission “must be allowed effectively to close all roads to the prohibited goal, so that its orders may not be bypassed with impunity,” FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081 (1952), by the state and local medical societies.
The Final Order of the FTC is MODIFIED as indicated herein. As so modified, the Order is ENFORCED.
. PRINCIPLES OF MEDICAL ETHICS
PREAMBLE
These principles are intended to aid physicians individually and collectively in maintaining a high level of ethical conduct. They are not laws but standards by which a physician may determine the propriety of his conduct in his relationship with patients, with colleagues, with members of allied professions, and with the public.
SECTION 1
The principle objective of the medical profession is to render service to humanity with full respect for the dignity of man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion.
SECTION 2
Physicians should strive continually to improve medical knowledge and skill, and should make available to their patients and colleagues the benefits of their professional attainments.
SECTION 3
A physician should practice a method of healing founded on a scientific basis; and he should not voluntarily associate professionally with anyone who violates this principle.
SECTION 4
The medical profession should safeguard the public and itself against physicians deficient in moral character or professional competence. Physicians should observe all laws, uphold the dignity and honor of the profession and accept its self-imposed disciplines. They should expose, without hesitation, illegal or unethical conduct of fellow members of the profession.
SECTION 5
A physician may choose whom he will serve. In an emergency, however, he should render service to the best of his ability. Having undertaken the care of a patient, he may not neglect him; and unless he has been discharged he may discontinue his services only after giving adequate notice. He should not solicit patients.
SECTION 6
A physician should not dispose of his services under terms or conditions which tend to interfere with or impair the free and complete exercise of his medical judgment and skill or tend to cause a deterioration of the quality of medical care.
SECTION 7
In the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him, or under his supervision, to his patients. His fee should be commensurate with the services rendered and the patient’s ability to pay. He should neither pay nor receive a commission for referral of patients. Drugs, remedies or appliances may be dispensed or supplied by the physician provided it is in the best interests of the patient.
SECTION 8
A physician should seek consultation upon request; in doubtful or difficult cases; or whenever it appears that the quality of medical service may be enhanced thereby.
SECTION 9
A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.
SECTION 10
The honored ideals of the medical profession imply that the responsibilities of the physician extend not only to the individual, but also to society where these responsibilities deserve his interest and participation in activities which have the purpose of improving both the health and the well-being of the individual and the community.
. The Order herein does not require, at least directly, that CSMS or NHCMA petitioners cease and desist from doing anything. However, both petitioners contend that they are proper parties to this proceeding since they were named as respondents in the agency action below, adverse findings were made against them by the FTC, and they are affected by the Final Order. The FTC does not oppose their participation in this proceeding, and suggests that they may be treated as intervenors. At the same time, CSMS and NHCMA do not appear to be seeking relief independent from that sought by AMA. In view of these factors, we assume without deciding that CSMS and NHCMA are proper parties to this petition for review.
. There appears to be no dispute that the practices complained of affect interstate commerce.
. Neither Cinderella nor Texaco, Inc. v. FTC, 336 F.2d 754, 760 (D.C.Cir.1964), are of assistanee to petitioners, since in both of those cases a commissioner made statements as to specific facts yet to be resolved in the respective proceedings. Indeed, the Texaco court specifically noted that since it could “not expect a Trade Commissioner to be neutral on anti-monopoly policies,” such an adjudicator could be permitted to hear a case, even “after he had expressed an opinion as to whether certain types of conduct were prohibited by law.” 336 F.2d at 760. As we have noted in a somewhat different context, “it is not improper for members of regulatory commissions to form views about law and policy on the basis of their prior adjudications of similar issues which may influence them in deciding later cases.” Rombough v. FAA, 594 F.2d 893, 900 (2d Cir. 1979).
. Sixteen months after the complaint was filed, AMA revised its Opinions and Reports. Petitioners contend that any violations that may have existed earlier were corrected by the 1977 version. We do not believe the FTC was required to amend its complaint at that point. However, AMA’s post-complaint revision properly may be considered on the issue of the remedy provided in the Final Order. See United States v. Parke, Davis & Co., 362 U.S. 29, 47, 80 S.Ct. 503, 513, 4 L.Ed.2d 505 (1960); United States v. Oregon Medical Society, 343 U.S. 326, 332, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952).
. For example, the ban on “solicitation” in the “Principles of Medical Ethics” was left unchanged, and the definition of that term incorporates many of the catchwords of earlier restraints. One instance of this is the retained condemnation of “self-laudatory” advertisements, even if fully accurate. In addition, the list of “accepted local media” fails to include newspapers, radio, or television. Publication of fees is mentioned only in connection with “reputable directories.”
. The record is mixed with regard to the impression of the average physician regarding the effect of the 1977 edition of Opinions and Reports on earlier versions. One witness testified that it was well accepted in the medical community that publication of a new edition rescinds previous editions. Other evidence, however, indicated that pre-1977 standards are still viewed as binding by physicians.
. In view of our finding of other substantial evidence to support the remedial order, we need not address the question whether the administrative law judge properly rendered an adverse finding against AMA for failure to comply with a subpoena duces tecum.
. AMA in its reply brief urges comparison with the FTC’s actions regarding veterinary organizations, in which the agency withdrew proposed rules concerning veterinary advertising as a result of voluntary reforms on the part of those organizations. Federal Trade Commission, News Summary (April 11, 1980). However, we feel that this example cogently illustrates the limits of our review in cases of this nature: It is up to the FTC to take recognition of genuine, voluntary reform by withdrawing formal proceedings when within its discretion it sees fit to do so.
. The relevant provisions of the Order require AMA to cease and desist from:
A. Restricting, regulating, impeding, advising on the ethical propriety of, or interfering with the consideration offered or provided to any physician in return for the sale, purchase or distribution of his or her professional services;
B. Restricting, interfering with, or impeding the growth, development or operations of any entity that offers physicians’ services to the public, by means of any statement or other representation concerning the ethical propriety of medical service arrangements that limit the patient’s choice of a physician;
C. Restricting, interfering with, or impeding the growth, development or operations of any entity that offers physicians’ services to the public, by means of any statement or other representation concerning the ethical propriety of participation by non-physicians in the ownership or management of said organization; and
D. Inducing, urging, encouraging, or assisting any physician, or any medical association, group of physicians, hospital, insurance carrier or any other non-governmental organization to take any of the actions prohibited by this Part.
. In addition, we refer petitioners to the opinion of the FTC herein, in which they are provided certain guidelines, to wit, where ads merely state the price of routine and standardized services, there is little need for further ethical restrictions to prevent deception; where restrictions are justified, they should be reasonably related to goal of preventing deception; and across-the-board bans to broad categories of representations, or general restrictions applicable to any representation made through a specific medium, are highly suspect. FTC Opinion, at 59.
. AMA cannot claim, as it attempts to do, that the disaffiliation provisions of the Order contravene Fed.R.Civ.P. 65(d), since that rule is inapplicable to agency orders. Moreover, there are no specific contempt proceedings that AMA’s constituent societies need be protected from since they are not bound by any FTC order. See Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126 (2d Cir. 1979).
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_casetyp1_2-3-3
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G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights".
Marta CARBONELL, Plaintiff-Appellant, v. LOUISIANA DEPT. OF HEALTH & HUMAN RESOURCES, Secretary of the Louisiana Dept. of Health & Human Resources, et al., Defendants-Appellees.
No. 85-3088
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1985.
Marta Carbonell, pro se.
Antonio L. Carbonell, New Orleans, La., for plaintiff-appellant.
Jesse James Marks, Asst. Atty. Gen., Dept, of Justice, New Orleans, La., for defendants-appellees.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
POLITZ, Circuit Judge:
Marta Carbonell appeals the dismissal, after a bench trial, of her complaint invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. The parties agreed to a trial before a magistrate with direct appeal to this court, 28 U.S.C. § 636. Finding no merit in any claim presented, we affirm the dismissal for the reasons we set forth.
Facts
Carbonell is a native of Cuba. She was employed by the state of Louisiana in various capacities. Her last assignment was with the Louisiana Department of Health and Human Resources (DHHR) as a Clinical Social Worker V, in the New Orleans Substance Abuse Clinic. As the second highest employee in that clinic, Carbonell was the chief social worker and supervised the Spanish-speaking program, day and evening supervisors and Spanish personnel. It is apparent that personal friction existed between Carbonell and her immediate supervisor, Adrienne Mouledoux, the district administrator.
Beginning in 1976 Carbonell filed various complaints with the Equal Employment Opportunity Commission (EEOC). The first complaint was against Mouledoux and raised claims of discrimination based on national origin. Subsequent complaints charged retaliatory acts allegedly triggered by the EEOC filings. Matters worsened until Calvin Bankston, head of the DHHR Bureau of Substance Abuse, determined to solve his department’s serious personnel problem by separating the protagonists. He reassigned Carbonell from the New Orleans Substance Abuse Clinic to a newly designated Substance Abuse Clinic in neighboring St. Bernard Parish. Carbonell was assigned to the new clinic as its administrative head and was told to report for duty on August 21, 1979. Carbonell declined, considering this transfer discriminatory, retaliatory, and tantamount to an assignment to “Outer Mongolia,” a characterization not likely shared by the thousands of residents of St. Bernard Parish.
In lieu of reporting to St. Bernard on August 21, 1979, Carbonell visited the EEOC office, filed a complaint, and then went to the New Orleans clinic. She was instructed to declare in writing whether she would accept her new assignment. By day’s end on August 21, Carbonell delivered a letter to Mouledoux stating that she was “herewith declining the assignment and taking the proper legal action.”
On August 22, 1979, Carbonell called Bankston and told him of her refusal to obey his transfer order. Bankston placed Carbonell on a three-day suspension without pay for insubordination and orally ordered her to report to the St. Bernard clinic on August 27. On August 24, Carbonell was given a written confirmation of the suspension and directed in writing to report to St. Bernard on August 27.
Carbonell responded to the suspension by amending her EEOC charge to include a claim that the transfer was in retaliation for her EEOC filing. Instead of reporting to St. Bernard on August 27, Carbonell opted to again report to the New Orleans clinic. Early that morning her husband delivered a letter to Mouledoux’s home, addressed to Bankston, in which Carbonell repeated her charge that the transfer was arbitrary, illegal, abusive, and in retaliation for filing EEOC complaints. She again declined to report to St. Bernard and stated that at 10:30 a.m. she would be at the New Orleans clinic.
When Carbonell arrived at the New Orleans clinic on August 22 she was met by Bankston who urged her to consider the seriousness of her refusal to accept the reassignment. Bankston again ordered her to report to St. Bernard. Carbonell refused. Later that day she was given a letter of removal which she promptly appealed to the Louisiana Civil Service Commission (CSC).
The CSC appointed a referee who conducted public hearings on August 11-13, 1980; April 20-24, 1981; May 26-29, 1981; and June 8-9, 1981. The CSC affirmed the DHHR removal. On appeal, the Louisiana Court of Appeal for the First Circuit affirmed the CSC decision. Carbonell v. Dept. of Health & Human Resources, 444 So.2d 151 (La.App.1983).
After her dismissal, Carbonell again amended her EEOC complaint to charge that the dismissal was retaliatory. The EEOC declined to press the matter and issued the statutory right-to-sue letter. Carbonell filed the instant suit claiming, as above noted, Title VII, § 1981, and § 1983 violations.
A bench trial before the magistrate lasted a week. At the outset of his memorandum opinion the magistrate stated:
If this Court were to make findings of fact based upon the evidence presented and testimony offered at trial, they would be identical to those facts set forth by the First Circuit Court of Appeal in its decision. This Court hereby adopts the findings of the state appeals court as its own. Carbonell v. Dept. of Health and Human Resources, No. 83-0186 [444 So.2d 151] (La.Ct.App. 1st Cir., Dec. 22, 1983).
After making these factual findings by reference and adoption, the magistrate proceeded to dismiss all claims. The Title VII claims against all individual defendants were dismissed because they were not the employer and Title VII was not applicable to them. The Title VII complaint against DHHR was dismissed on grounds of res judicata. The § 1981 claim was dismissed for failure of any evidence of intent to discriminate against Carbonell on the basis of national origin. Finally, as to the § 1983 claim, the magistrate found that Carbonell was inappropriately attempting to appeal a decision of the Louisiana court to the federal court, a matter over which the court lacked jurisdiction.
Analysis
Carbonell urges, with subcategorizations, more than a score of assignments of error. Most are totally without merit. We combine the remainder for review.
A. Section 1981 Claim
As an appellate tribunal, we are constrained by Fed.R.Civ.P. 52(a) to accept all findings of fact made by the trier of fact, in this instance the magistrate, unless shown to be clearly erroneous. There has been no such showing. Nor could any such showing be made. The facts as found by the magistrate, through his adoption of the state court findings, are fully supported by the record. This claim borders on the frivolous.
B. Section 1983 Claim
Stripped to its essentials, Carbonell’s § 1983 complaint would have the district court sit in review of the decision of the Louisiana First Circuit Court of Appeal. The district court lacks jurisdiction to conduct that exercise. As we held in Kimball v. The Florida Bar, 632 F.2d 1283, 1284 (5th Cir.1980):
Stripped to its essentials, Kimball’s petition for declaratory and injunctive relief asks the federal district court to reverse a final, definitive state court order. As we stated in Lampkin-Asam v. Supreme Court of Florida, 601 F.2d 760 (5th Cir.1979): “This Court has held on numerous occasions that federal district courts do not have jurisdiction under 42 U.S.C. § 1983 or any other theory to reverse or modify the judgments of state courts.” We echo that it “is axiomatic that a federal district court, as a court of original jurisdiction, lacks appellate jurisdiction to review, modify, or nullify a final order of a state court. 28 U.S.C. § 1257(3).” Id. The proper forum for the relief Kimball now seeks was the United States Supreme Court.
It is hornbook law that § 1983 does not create a federal cause of action but, rather, a remedy for the vindication of other federal statutory or constitutional rights. That those rights have been adjudicated in a state court under concurrent § 1983 jurisdiction or under a state cause of action is of no moment: once a determination has been made by a state court relative to the existence or non-existence of a federal right, and any possible infringement of that right, the only avenue of review is to the United States Supreme Court via 28 U.S.C. § 1257(3). As a panel of this court observed:
A federal district court, as a court of limited original jurisdiction, lacks power to review, modify or nullify a final order of a state court. Nor can a party, aggrieved by a judicial decision of a state’s highest court, invest a lower federal court with such jurisdiction by clothing his or her grievance in the garb of § 1983 and alleging that the decision of the state court deprived him or her of constitutionally protected rights or inter-ests____ A party seeking relief from such an allegedly unconstitutional action by a state court may seek review in only one federal court — the United States Supreme Court.
Dasher v. Supreme Court of Texas, 650 F.2d 711, 714-15 (5th Cir.1981), rev’d on other grounds, 658 F.2d 1045 (5th Cir.1981) (on reh’g), reh’g opinion disapproved, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16 (1983). See also Brown v. Chastain, 416 F.2d 1012 (5th Cir.1969); Gresham Park Community Organization v. Howell, 652 F.2d 1227 (5th Cir.1981).
We recognize that Carbonell has not faulted the Louisiana court, as such, but she asserts the same claims previously asserted in the state system. She maintains that the DHHR violated her Title VII fair employment rights. The underlying federal right now advanced is identical to that adjudged by the Louisiana court. Thus, whether the dismissal of the § 1983 claim for lack of jurisdiction should be upheld hinges on whether the complaint seeks an exercise of appellate or original jurisdiction. Despite the fact that the proceedings before the Louisiana Civil Service Commission and the subsequent state-court appeal were based largely on state administrative and statutory law, the Supreme Court’s opinion in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), teaches that the nature of the underlying claim, not the nature or basis of the desired relief, directs the answer to the appellate versus original jurisdiction inquiry. When a plaintiff presents federal claims that “are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiff’s [state-law claim], then the District Court is in essence being called upon to review the state-court decision. This the District Court may not do.” Feld-man, 460 U.S. at 482 n. 16, 103 S.Ct. at 1315 n. 16, 75 L.Ed.2d at 223 n. 16. Feld-man directs the inquiry away from a mechanical classification of the relief requested or the cause of action, toward a realistic consideration of the nature of the underlying claim.
The instant case is guided by Feldman. We are presented with a § 1983 claim challenging an adverse state-court judgment on the theory that the state administrative action therein upheld violated the plaintiff’s constitutional rights. This necessarily invites appellate review of the determinations of federal rights by the Louisiana court of appeal. That review is beyond the jurisdictional pale of the federal district court. The magistrate properly concluded that the court had no subject-matter jurisdiction over this § 1983 claim as postulated.
C. Title VII Claim
It cannot be gainsaid that the dismissal of the Title VII claims against the non-employer individual defendants was appropriate. Only the claim against the DHHR need be reviewed. The magistrate concluded that review of this claim against the DHHR was precluded by operation of the doctrine of res judicata, 28 U.S.C. § 1738, a defense which was not pled.
This approach is fraught with difficulty for under Rule 8(c), Federal Rules of Civil Procedure, the defense of res judicata must be affirmatively pled. Generally this rule is strictly read and applied, but in this circuit we have recognized two limited instances in which the trial or appellate court may raise the issue sua sponte. An example of one exception is United Home Rentals, Inc. v. Texas Real Estate Commission, 716 F.2d 324, 330 (5th Cir.1983), where after observing that res judicata is an affirmative defense which must be specially pleaded we observed:
[The] failure to assert res judicata as a defense does not determine the issue, however, since in the interest of judicial economy res judicata may properly be raised by a district court sua sponte, particularly where both actions are brought in the courts of the same district. See Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (affirming district court sua sponte dismissal on res judica-ta grounds) ____ On occasion, appellate courts have raised the issue for the first time on appeal. See Robertson v. Interstate Securities Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971)____ In these cases, however, the appellate court considered applying res judicata as a means to affirm the district court decision below.
The other exception involves the situation in which all relevant data and legal records are before the court and the demands of comity, continuity in the law, and essential justice mandate judicial invocation of the principles of res judicata. This exception is illustrated by our decision in American Furniture Co. v. International Accommodations Supply, 721 F.2d 478 (5th Cir.1981).
We are not persuaded that the case now before us qualifies under either exception; we therefore decline to use 28 U.S.C. § 1738 as a bar to consideration of the Title VII claim.
The evidence of record provides an ample basis for affirming the dismissal of Carbonell’s Title VII claim. Reaching and reviewing the magistrate’s adoptive findings in light of this evidence, we find no clearly erroneous factual finding. The scenario which we must accept under the directive of Fed.R.Civ.P. 52(a) demonstrates that Carbonell was discharged for rank insubordination. She repeatedly refused direct orders of reassignment. She reserved to herself the right to determine the clinic in which she would work. Working in the parish of St. Bernard somehow offended her sensibilities. She insisted on having her way notwithstanding the urgings and orders of her superiors. We find no support in the accepted findings of fact; indeed we find no support in the record for the claim that retaliatory actions were taken because of her national origin or because she filed various EEOC charges. We find and conclude that Carbonell has failed to establish the discrimination charged. Her Title VII complaint is without merit.
Finally, we consider Carbonell’s argument that the recent decision by the Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S.-, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), declares her dismissal constitutionally infirm and that the decision by the Louisiana Civil Service Commission and Louisiana Court of Appeal must be accordingly reversed. This challenge founders on the same legal shoals as the § 1988 claim discussed supra. Lower federal courts do not review on appeal the constitutionality of state court decisions. That prerogative belongs exclusively to the Supreme Court. 28 U.S.C. § 1257(3); Kimball v. The Florida Bar. Whatever Loudermill portends for future litigation, it does not impact on the result of this proceeding.
The magistrate dismissed all claims. We AFFIRM his judgment.
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
The FIRST NATIONAL BANK OF CROWN POINT, a national banking association, and the Commercial Bank of Crown Point, a State of Indiana banking corporation, Plaintiffs-Appellants, v. William B. CAMP, Comptroller of the Currency of the United States of America, and Mercantile National Bank of Indiana, a national banking association, Defendants-Appellees.
No. 71-1463.
United States Court of Appeals, Seventh Circuit.
Argued May 17, 1972.
Decided July 7, 1972.
William Carroll, Crown Point, Ind., Fred G. Donnersberger, Hammond, Ind., for plaintiffs-appellants.
L. Patrick Gray, III, Asst. Atty. Gen., William D. Appier, Walter H. Fleischer, Joseph B. Scott, Attys., Dept. of Justice, Washington, D. C., William C. Lee, U. S. Atty., Fort Wayne, Ind., Timothy P. Galvin, Sr., and Patrick J. Galvin, Hammond, Ind., for defendants-appellees.
Before SWYGERT, Chief Judge, and KILEY and SPRECHER, Circuit Judges.
SPRECHER, Circuit Judge.
On June 23, 1970, the Comptroller of the Currency of the United States approved an application by the Mercantile National Bank of Indiana for permission to construct a branch bank in an unincorporated area adjacent to the city of Crown Point, Indiana. The appellants in this case, the First National Bank of Crown Point and the Commercial Bank of Crown Point, raised objections to Mercantile’s application at the Comptroller’s informal hearing on the matter and renewed their objections in an administrative review procedure before the district court. The district court granted summary judgment for the codefendants, Mercantile Bank and the United States Comptroller, and the case is before us on appeal from that decision. We affirm.
The National Bank Act, 12 U.S.C. § 36(c), provides that banks may, with the approval of the Comptroller of the Currency, establish branch offices at any location authorized by state law. The Indiana statutory provision applicable to branch bank locations in Lake County, the county in which Mercantile seeks to locate its branch, is Burns’ Ind. Stat. § 18-1707. That section provides in part:
In all counties having a population of less than five hundred thousand (500,000) inhabitants, according to the last preceding decennial United States census, or in counties having three (3) or more cities of the second class, except as hereinafter otherwise provided, any bank or trust company may open or establish a branch bank in any city or town within the limits of the county in which the principal office of such bank or trust company is located, if there is no bank or trust company located in such city or town.
Appellants argue that the area in which the proposed bank was to be located was not a “city or town” within the meaning of section 1707 and that, if it was a “city or town,” it was by prior de facto annexation part of the city of Crown Point, and, therefore, an objectionable site for a branch bank because both appellant banks maintain their home offices in Crown Point.
I.
In support of their contention that the district court erred in finding that the proposed site was a “town” within the meaning of the Indiana statute, appellants note that Mercantile’s 1967 application for a branch banking site in the same area was denied because the Comptroller found that at that time the area “involved did not possess sufficient viability to be considered a city or town. . . .” Appellants argue that the Comptroller’s conclusion that the area had developed sufficiently since that time to be a “town” within the meaning of the statute was arbitrary and capricious. We disagree.
A review of the record discloses that substantial development had occurred during the four-year period between 1967 when the first application was denied and 1970 when this application was filed. In 1967, there existed only one 27-unit single-family residential development; a proposal to build a courthouse in Lake County was stalled at the time by litigation which rendered its future uncertain. By 1970, however, the litigation had been successfully concluded, the state legislature had enacted legislation necessary for the project, and a $15 million bond issue to finance the project had been sold. Furthermore, the number of residential units had increased from 27 units to 147 single-family units, with additional construction planned on land recently purchased in the area. Although the appellants challenge the propriety of the Comptroller’s consideration of plans for future growth, the Comptroller was not restricted to the physical facts as they existed at the time of the application, but could take into consideration planned development of the area which would affect its character in the foreseeable future. First Citizens Bank & Trust Co. v. Camp, 409 F.2d 1086, 1093 (4th Cir.1969). Thus, taking into account the projected development in the additional 53 square miles encompassed by the 1970 service area and the development expected to be drawn by the location of the new Lake County courthouse complex within that area, we believe the Comptroller’s conclusion that the area in which the Mercantile wished to establish its branch bank was a “town” within the meaning of the Indiana statute was supported by substantial evidence.
II.
Appellants urge that under Indiana statutes in effect at the time of the 1970 application, the proposed site was in fact a part of the city of Crown Point by virtue of a prior de facto annexation. Although they concede that there was no formal annexation in compliance with Burns Ind.Stat. § 48-701 et seq., they advance several theories in support of their de facto annexation argument.
Appellants refer the court to a contract dated July 2, 1965, between the city of Crown Point and the owners of the property now referred to as Wirtz Crown Heights. By this contract, the developers of Wirtz Crown Heights agreed to develop the property according to the “Subdivision Control and Zoning Ordinances of the City of Crown Point” and to seek approval from the Crown Point Plan Commission for all developments in exchange for city water and sewer services. The contract contained a provision under which any rights to object to annexation of the area to the city of Crown Point were waived by the developers. It is argued that this contract represents an alternative method of annexation, expressly countenanced by Burns Ind.Stat. § 53-734, which could be used in place of the strict annexation procedure established by Burns Ind.Stat. § 48-701. Section 53-734, while giving Indiana cities the power to regulate contiguous unincorporated areas within a two-mile radius of the corporate limits, does, not, we believe, represent an alternative to the annexation provisions of section 48-701. Section 48-701 is unequivocal in restricting the boundaries of cities and towns to those defined by formal ordinance. Although section 48-701 permits cities to contract with unincorporated areas for municipal services in lieu of annexation, the provision specifies limited periods of time during which any contract may continue in force, and, through a provision permitting the contracting parties to provide that annexation is not to be effected during the term of the contract, specifically delineates between the two procedures. We think it is clear, therefore, that neither section 53-734 nor the contractual provisions of 48-701 provide an alternative to the formal annexation procedures of sections 48-701 et seq. This decision is supported by the opinion of the Indiana Supreme Court in Pittsburgh, C.C. & St. L. Ry. v. City of Anderson, 176 Ind. 16, 18, 95 N.E. 363 (1911), in which the court states:
The municipal authorities can in no case alter the boundaries unless the power so to do is conferred upon them by the Legislature; such power, when conferred, must be exercised under the circumstances and in the manner prescribed.
Next the appellants argue that Mercantile, by voluntarily seeking to comply with the planning and zoning boards of Crown Point, even though the contract mentioned above had expired and no longer required such compliance, acquiesced to control by the city of Crown Point, and, having done so, could not challenge the validity of the annexation. In support of this theory the appellants cite DePauw Plate-Glass Co. v. City of Alexandria, 152 Ind. 443, 52 N.E. 608 (1899), which held that persons living in annexed territory may, by acquiescence and participation in the benefits conferred by the city, be precluded from disputing the validity of the annexation proceedings. That case, however, is completely inapposite to the instant controversy. De Pauw Plate-Glass involved a taxpayer whose land was erroneously omitted from a legal description of land taken in accord with valid statutory annexation procedures. After accepting the benefits of annexation for three years the taxpayer sought to recover certain taxes which it had paid to the city. Here, as we have stated, there never was an annexation. Surely a voluntary attempt to construct a building consistent with a plan which had formerly been mandatory under the contract but which was no longer in effect does not of itself confer upon the appellants or the city of Crown Point the right to restrict Mercantile’s use of its property.
Appellants also argue that Burns Ind. Stat. §§ 26-411 and 26-413, have the effect of extending the boundaries of Crown Point to include the area in question. These sections provide in substance that a court can hold valid court sessions in courthouse facilities located “outside of the corporate limits of a county seat city” and that any business so transacted “shall be deemed to have been transacted and held at and within such county seat city.” These provisions do not support the appellants’ conclusion; indeed they contradict it. It is precisely because the area in which the new courthouse complex was to be located was not a part of Crown Point that the statutes were enacted. As the court below observed, “[T]hey [the statutes] do not purport to do more than they say . ” and they certainly do not provide an alternative to statutory annexation.
III.
Appellants’ final argument is that the district court erred in disposing of this case on a motion for summary judgment. The district court viewed the action as an appeal from an administrative agency determination and applied the standards set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
It is clear that Congress, having expressly conferred the power to resolve branch banking questions on the Comptroller, intended for the courts to confine their involvement in such questions to a review of his actions. It follows from that conclusion that summary judgment was proper in this proceeding. Ramapo Bank v. Camp, 425 F.2d 333, 347-348 (3d Cir.1970); Ohio Bank & Savings Co. v. Tri-County National Bank, 411 F.2d 801 (6th Cir.1969); Warren Bank v. Camp, 396 F.2d 52, 55-56 (6th Cir.1968). See United States v. Carlo Bianchi & Co., 373 U.S. 709, 714-715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). The question to be resolved in reviewing administrative action is limited to whether the “action of the administrator was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Warren Bank, supra, 396 F.2d at 56; 5 U.S.C. § 706(2) (A). It would not have been proper, as the appellants argue, for the district court to have held a de novo hearing into the questions resolved in the administrative proceeding. The district judge’s inquiry was limited to determining whether there was substantial basis in the record considered as a whole for the administrator’s conclusions.
We conclude, therefore, that the record demonstrates a substantial factual basis for the findings of the Comptroller and that those findings were not made arbitrarily or capriciously. The order of the district court is affirmed.
Affirmed.
. 12 U.S.C. § 36(c) states:
A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches : (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.
. The Comptroller based his finding that the area was a “town” in part on his belief that the courthouse would “ [provide a nucleus for the generation of new service, business, and commercial establishments.”
.. In reaching his conclusion, the Comptroller not only considered the evidence of a general population shift from the industrial cities of Hammond and Gary in northern Lake County to residential developments in and around Crown Point, but also had specific evidence of both proposed developments and developments already under construction within the proposed service area.
. At the time the Comptroller and district court were asked to interpret the word “town” as used in section 1707, there was no existing Indiana authority interpreting the provision. However, in Pendleton Banking Co. v. Department of Financial Institutions, Ind., 274 N.E.2d 705 (1971), the Indiana Supreme Court dealt specifically with that subject, holding that the word “town” includes “a compact area having a number of persons living in close proximity to one another with some degree of business being transacted within the area.” 274 N.E.2d at 708. The court noted that each case would require a factual determination as to whether the area could be considered a town, but that a positive determination was not dependent upon the existence of any number of people or certain facilities. U.
. A similar contract is said to have covered the Fountain Ridge Addition but a copy of that contract is not a part of this record.
. Burns Ind.Stat. § 53-734 provides in part:
A city plan commission shall adopt a master plan for the development of the city and of such contiguous unincorporated area outside the corporate limits of the city as, in the judgment of the commission, bears reasonable relation to the development of the city as it shall designate. Except as limited by the political subdivision boundaries of other cities or states, or by the boundaries of unincorporated areas subject to the jurisdiction of other city plan commissions, such designated contiguous unincorporated area may include all or any part of the area within two miles from the corporate limits of the city. . . .
. The section provides :
The common council shall have power, by ordinance, to declare and define the entire corporate boundaries of such city, and such ordinances, properly certified, shall be conclusive evidence, in any court or proceeding, of the boundaries of such city. .
. The paragraph states, in relevant part: The mayor and the proper administrative board with the ratification and approval of the common council shall also have the power, in lieu of annexing any such contiguous territory or in cases not involving any proposed annexation of territory, to enter into contracts with the owners or lessees of designated property in the vicinity of the city, whether within or without county in which the city is located, providing for the payment or contribution of money to the city to be used for such municipal or public purposes as may be specified in such contract. .
. The relevant portion of Burns Ind.Stat. § 48-701 states:
Such contracts may be entered into for such period of time, not exceeding fifteen [15] continuous years under any one [1] such contract, with first and second class cities, and not exceeding four [4] continuous years under any one [1] such contract with third, fourth and fifth class cities. .
. Burns Ind.Stat. § 48-701:
[I]f the contract so provides, during the effective term of any such contract the designated property of such contracting owners or lessees shall not be subject to annexation by the contracting city.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
KALASANCKAS v. HINES, Director of United States Veterans’ Bureau.
No. 5045.
Court of Appeals of District of Columbia.
Argued Jan. 7, 1930.
Decided Feb. 4, 1930.
Hallook P. Long and Daniel L. Grant-ham, both of Washington, D. C., for appellant.
Leo A. Rover and J. T. Brady, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
This appeal is from a judgment of the Supreme Court of the District of Columbia denying appellant a writ of mandamus to compel the Director of the United States Veterans’ Bureau to award him compensation for total- disabilities alleged to result from the “permanent loss of the use of both feet,” as provided in paragraph (3) of section 202, of the World War Veterans’ Act of 1924, 43 Stat. 618 (38 USCA § 473).
It appears that there was issued to appellant a policy of war risk insurance in the amount of $10,000, payable upon his death or total permanent disability. The Veterans’ Bureau ruled that the policy had matured because of appellant’s total permanent disability, on April 20, 1918, and paid him disability benefits thereunder until December 19, 1921, refunding to him all premiums collected thereunder since the date of its maturity. Thereafter the Veterans’ Bureau discontinued the payment of disability benefits and 'required appellant to reinstate his war risk insurance policy, and later to convert it into a government life insurance policy, deducting amounts due as premiums monthly from his compensation, up to and including the month of April, 1929.
Appellant, failing to get relief from this ruling in the Bureau, filed suit in the Supreme Court of the District of Columbia on the original war risk insurance policy, claiming that it had matured on April 20, 1918, by reason of the loss of the use of both feet. Issue was joined thereon, and the' court entered a special finding to the effect that plaintiff had suffered the loss of the use of both feet on April 20, 1918, which, under the statute, constituted total permanent disability. A judgment was thereupon entered on February 4, 1929, for all disability benefits due under the original policy not theretofore paid, and for all premiums collected since the date of the maturity of said policy not theretofore refunded. Appellee Director, in compliance with the judgment, paid the disability benefits thereunder, but refused to refund to appellant the amounts deducted as premiums, and continued to deduct these amounts from the amount allowed appellant as compensation up until the filing of the petition in the present ease. This ease therefore grows out of the failure of the Bureau to rerate appellant for compensation in compliance with the judgment of the court.
The case is resolved to the question of whether or not the finding of fact by the Supreme Court of the District to the effect that appellant has injuries which constitute “the permanent loss of the use of both feet from and after the 20th day of April, 1918,” is res adjudicata and conclusive upon the Director in the determination of the issues of fact arising in a claim by the plaintiff for compensation under the War Veterans’ Act of 1924.
We are of opinion that the findings of fact made by the court, however persuasive, are not conclusively binding upon the Director in the matter of rerating for compensation. Section 205 of the Act (38 USCA § 494) provides that the Bureau, on- its own motion, “may at any time review an award and, in accordance with the facts found upon such review, may end, diminish, or increase the compensation previously awarded.” Authority is given the Bureau under paragraph (4), § 202, of the Act (38 USCA § 477), to establish a “schedule of ratings of reductions in earning capacity from injuries or combinations of injuries shall be adopted and applied by the bureau,” under which ratings may be as high as 100 per cent. “The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.” The Bureau, in finally adjudicating appellant’s ease, rated his disability at 70 per cent., and fixed his compensation accordingly. Section 5 of the Act (38 USCA § 426) provides that the decision reached in a ease of this sort by the Bureau on questions of fact shall be conclusive.
While it is true that the trial court found as a fact that plaintiff had suffered the loss' of the use of both feet, the court was there determining an insurance case arising under a different article of the statute from the ease here under consideration; and the question before the court was whether or not plaintiff was permanently and totally disabled, either by the loss of the use of his feet or for any other reason, at a time when his insurance contract was in force. The Director here'is exercising his discretion and judgment in rating for compensation purposes a rating based upon plaintiff’s individual impairment in earning capacity. The Director may well have found that, though there is a substantial loss of the use of both feet, plaintiff still possesses considerable earning capacity, which could be taken into consideration in determining the percentage of incapacity.
In Silberschein v. United States, 266 U. S. 221, 45 S. Ct. 69; 71, 69 L. Ed. 256, the court, in respect of the binding effect of a finding by a tribunal outside of the Veterans’ Bureau, said: “These are all matters bearing, at most, upon the soundness of the Director’s determination upon a matter properly submitted to- his judgment, and fall far short of establishing its arbitrary character.” In other words, the finding of the court in the present ease does not reduce the discretionary power of the Director, in fixing compensation, to a mere ministerial duty.”
From this review o-f the provisions of the act it is apparent that the judgment of the court in the insurance ease is not conclusive or res adjudicata upon the Bureau in establishing a rerating for compensation purposes. The findings of the Bureau are not made final and conclusive under the statute, but are subject to review and change by the Bureau “on its own motion,” whenever the Director may deem it advisable. It follows that the broad discretionary power thus conferred cannot be controlled by mandamus.
The judgment is affirmed, with costs.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_initiate
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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 what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Regis Ann GOULD, as Parent Guardian and next of friend of Aaron Russell Gould and Adrienne Marie Gould, Regis Ann Gould, as Special Administrator of the Estate of Gary Francis Gould; Regis Ann Gould, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; Public Health Service, Defendants-Appellees.
No. 88-3091.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 5, 1990.
Decided June 8, 1990.
As Amended June 18, 1990.
Joseph Cornelius Ruddy, Jr., Hyattsville, Md., for plaintiffs-appellants.
Lowell V. Sturgill, Jr., U.S. Dept, of Justice, Washington, D.C., for defendants-ap-pellees.
Breckinridge L. Willcox, U.S. Atty., Juliet A. Eurich, Asst. U.S. Atty., Baltimore, Md., Sally K. Trebbe, Office of the Gen. Counsel, Dept, of Health and Human Services, on brief, Washington, D.C., for defendants-appellees.
Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc.
CHAPMAN, Circuit Judge:
Regis Ann Gould filed this action individually, and in the dual capacity as special administrator of the estate of her late husband, Gary Francis Gould, and as a parent guardian and next friend of her minor children, Aaron Russell Gould and Adrienne Marie Gould, seeking damages for the alleged wrongful death of Gary Francis Gould resulting from alleged medical malpractice. The district court granted the defendants’ motion for summary judgment and found that the claim was time barred under 28 U.S.C. § 2401(b). Appellant asserts that her claim was timely because such claim did not accrue until she learned that one of the treating physicians was a federal employee. We find that the cause of action accrued when the plaintiffs learned of both the existence and the cause of the decedent’s injury, and we affirm.
I
On August 27, 1980, the decedent, Gary Francis Gould, began experiencing headache, fever, nausea, stiff neck and other symptoms of illness. These conditions persisted and on the morning of August 30, 1980, he went to the South County Family Health Care Corporation in Anne Arundel County, Maryland, and was treated by James Kevin O’Rourke, M.D., a commissioned officer of the United States Public Health Service assigned to the National Health Service Corps and working at the health center. The Commissioned Corps of the Public Health Service is established and administered pursuant to the Public Health Service Act, 42 U.S.C. §§ 204 et seq. The National Health Service Corps is established pursuant to 42 U.S.C. § 254d. The purpose of the Corps is to provide health care providers in areas designated as health manpower shortage areas, and the Public Health Service is an agency in the Department of Health and Human Services.
After being treated by Dr. O’Rourke, Mr. Gould returned home, but his condition deteriorated. He called Dr. O’Rourke again, and on the afternoon of August 30, 1980, he was admitted to the Anne Arundel General Hospital where Dr. Barry R. Nathan-son, M.D., a civilian employee of the United States Public Health Service in the National Health Service Corps, consulted with Dr. O’Rourke about Mr. Gould’s condition. Each of these doctors was a federal employee assigned to the South County Family Health Care Corporation in a health manpower shortage area.
Numerous tests were performed with negative results and it was thought that the symptoms were from a viral syndrome. However, when a rash developed on September 3, Dr. O’Rourke suspected Rocky Mountain Spotted Fever, and a consultation with an infectious disease specialist confirmed this diagnosis. Antibiotic therapy was immediately begun, but Mr. Gould died at the hospital on September 4, 1980. During the course of treatment, particularly prior to the diagnosis of Rocky Mountain Spotted Fever, members of the Gould family complained about the deterioration in Gould’s condition and were advised that the condition was a virus.
In a letter of August 8, 1983, plaintiffs’ counsel requested information from the Department of Public Health regarding the “exact work status” of Dr. O’Rourke. The Department of Health and Human Services (HHS) was promptly notified of this request and responded to the inquiry. ' On September 2,1983, a HHS attorney notified plaintiffs’ attorney by telephone of Dr. O’Rourke’s status as a federal employee at the time he treated the decedent. The following day, plaintiffs’ counsel was advised by HHS that Dr. Nathanson was also a federal employee at the time of such treatment. Plaintiffs' attorney received written confirmation of Dr. O’Rourke’s employment status on September 26, 1983, and a similar notice of Dr. Nathanson’s status on December 16, 1983.
The plaintiffs took no action against the United States at this time, but on September 2, 1983, within hours of the expiration of the claim under Maryland’s three-year statute of limitations, plaintiffs initiated a claim against the individual physicians before the Health Claims . Arbitration Board alleging negligent care and treatment of the decedent. On December 16, 1985, the action before the Health Claims Arbitration Board was dismissed upon a finding that the doctors were employed by the United States Public Health Service and the alleged wrongdoing fell within the scope of their employment, and they were not subject to suit in a state court or forum pursuant to 28 U.S.C. § 1346(b).
In early August 1985, prior to dismissal of the claim before the Health Claims Arbitration Board, an administrative tort claim was presented to the Department of Health and Human Services, Division of Public Health Service, alleging negligence by .National Health Service Corp physicians in failing to expeditiously diagnose and treat Gary F. Gould for Rocky Mountain Spotted Fever. This claim was denied in August 1986 on the ground that it was barred by the statute of limitations applicable to claims prosecuted under the Federal Tort Claims Act, 28 U.S.C. § 2401(b).
In February 1987, plaintiffs initiated the present action in the United States District Court for the District of Maryland. The defendants raised the bar of the two-year limitation provision contained in 28 U.S.C. § 2401(b). Plaintiffs countered that she had neither direct nor implicit knowledge of the status of the physicians as federal employees, and that the statute of limitations should be tolled until plaintiffs were made aware of the fact that the physicians were federal employees, because the exercise of due diligence would not have revealed this fact. The district court rejected this argument and found that the statutory period had expired, and that the court lacked jurisdiction as a matter of law. We agree and affirm.
II
It is well established that the United States Government, as sovereign, is immune from suit unless it consents to be sued. The terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Congress created a limited waiver of sovereign immunity in the FTCA. 28 U.S.C. §§ 2671-2680. This waiver permits suit only on terms and conditions strictly prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967).
Although the FTCA gives limited consent to suits against the federal government for torts committed by its employees while acting within the scope of their official duties, the Act specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act. 28 U.S.C. §§ 2401(b), 2675(a); Kielwien v. United States, 540 F.2d 676, 679 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); West v. United States, 592 F.2d 487, 492 (8th Cir.1979).
The applicable statute of limitation within the framework of the FTCA provides: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues_” 28 U.S.C. § 2401(b). This time limitation is jurisdictional and nonwaivable. Kielwien, 540 F.2d at 679.
Statutes of limitation, which “are found and approved in all systems of enlightened jurisprudence,” Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent a legislative determination that “even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). While affording plaintiffs what legislatures deem reasonable time to present claims, statutes of limitation give defendants and courts a degree of protection from having to confront controversies in which the search for truth may be thwarted by the loss of evidence, whether by the death or disappearance of witnesses, fading memories, loss of physical evidence, or the like. United States v. Manon, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468 (1971); Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965).
Section 2401(b) represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government. The Supreme Court, in recognizing this balance, has instructed the judiciary to abstain from extending or narrowing § 2401(b) beyond that which Congress intended and thereby defeating its obvious purpose. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979).
Applying these principles, federal courts with few exceptions have dismissed complaints where a plaintiff failed to file a claim with the appropriate federal agency within the two-year limitations period, even in cases where the plaintiff’s failure to submit a claim in a timely manner was the result of the plaintiffs ignorance of the defendant’s status as a federal employee. Flickinger v. United States, 523 F.Supp. 1372, 1375 (W.D.Pa.1981). Courts have held that despite the harsh impact of this rule on plaintiffs, Wilkinson v. United States, 677 F.2d 998, 1001 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), and “strong equitable considerations notwithstanding, the two-year limitation period of 28 U.S.C. § 2401(b) cannot be tolled or waived.” Lien v. Beehner, 453 F.Supp. 604, 606 (N.D.N.Y.1978). See also United Missouri Bank South v. United States, 423 F.Supp. 571, 577 (W.D.Mo.1976) (limitation provision of FTCA not to be extended by implication or by equitable considerations).
Although FTCA liability is determined “in accordance with the law of the place where the act or omission occurred,” 28 U.S.C. § 1346(b), federal law determines when a claim accrues. Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980); Portis v. United States, 483 F.2d 670, 672 n. 4 (4th Cir.1973); Sexton v. United States, 832 F.2d 629, 633 n. 4 (D.C.Cir.1987); Wehrman v. United States, 830 F.2d 1480, 1482-83 (8th Cir.1987). In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court reiterated that the general rule under the FTCA “has been that a tort claim accrues at the time of the plaintiff’s injury, “although in medical malpractice cases it is thought to extend “until the plaintiff has discovered both his injury and its cause.” Id. at 120, 100 S.Ct. at 358.
The clear import of Kubrick is that a claim accrues within the meaning of § 2401(b) when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury. “This decision signifies a retreat from the expansive view of ‘accrual’ previously adopted by a number of the circuits, including the Fourth Circuit.” Dessi v. United States, 489 F.Supp. 722, 724 (E.D.Va.1980). Under Kubrick, the court concluded in Dessi,
nothing more than knowledge of injury and causation is required for the cause of action to accrue. The action accrues even if the claimant believes that his injury was unavoidable and did not indicate negligent treatment. It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.
Id. at 725. See also Gilbert v. United States, 720 F.2d 372, 374 (4th Cir.1983) (“The Supreme Court has determined that a cause of action accrues within the meaning of [28 U.S.C.] § 2401(b) when a prospective plaintiff knows of both the existence of his injury and its cause.”); Dearing v. United States, 835 F.2d 226, 228 (9th Cir.1987) (“A medical malpractice claim does not accrue under the FTCA until the plaintiff discovers, or reasonably should have discovered, his injury and its causes.”); Wehrman, 830 F.2d at 1483 (same).
The question presented by this case is when did the plaintiffs’ claim “accrue” within the meaning of the FTCA? Did the cause of action accrue when plaintiffs learned both of the existence and cause of the decedent’s injury, or did it only accrue when plaintiffs also learned the legal identity of the alleged tort-feasors as federal employees? We hold that plaintiffs’ claim accrued, in accordance with Kubrick, on September 4, 1980, upon the death of Gary Francis Gould. Plaintiffs at this time were aware of the existence of the injury and its cause, including the identity and conduct of attending physicians. This sufficiently armed plaintiffs with the “critical facts” to investigate the claim and present it within the two-year statute of limitations.
The plaintiffs argue that in addition to knowledge of the injury and its cause, Kubrick implies that a claim does not accrue until a plaintiff learns the legal identity of the alleged tort-feasor as a federal employee. The statute of limitation should be tolled, plaintiffs continue, when pertinent information such as knowledge of the injury or the legal identity of the tort-feasor is in the control of the putative defendant, unavailable to the plaintiff or at least difficult to obtain. Significantly, the legal identity of the tort-feasor was presumed in Kubrick. Nowhere in Kubrick is any reference to the legal identity of the tort-fea-sor.
This rule has been considered and rejected in this Circuit. In Baker v. United States, 341 F.Supp. 494 (D.Md.1972), aff'd per curiam, No. 72-1708 (4th Cir. Nov. 30, 1972), it was held that an automobile negligence action filed in state court within the three-year Maryland limitation period but more than two years after the accident was forever barred pursuant to 28 U.S.C. § 2401(b). A defendant driver, who was acting within the scope of his government employment at the time of the accident, initially handled the claim through his insurance company and his own attorney. Some five years after the accident the defendant brought the claim to the attention of government officials, after which the government promptly removed the claim to federal court where the United States was substituted as the party defendant. The plaintiff did not discover until after the statute of limitations had run that the driver who allegedly caused the accident was a federal employee acting within the scope of his employment. “All cases cited or found,” the district court concluded, “have held that the [FTCA] two-year limitation period applies, and that such suits cannot be remanded to the state court to proceed against the government employee individually.” Baker, 341 F.Supp. at 495-96 (citations omitted). The court further stated:
That result in the instant case seems unfair, since no one realized until too late that Smith was in the course of his employment by the government at the time of the accident. However, no facts which would ordinarily amount to an es-toppel against Smith, his insurer or the government have been shown. Other courts have applied the statute strictly against plaintiffs in circumstances which seem to be more favorable to the plaintiff than those in the cases at bar. See, e.g., Mann v. United States, [399 F.2d 672 (9th Cir.1968)]. If this case is appealed, I would be happy to be reversed. But under the statute and the authorities, I must dismiss the suits.
Id. at 496. We affirmed this judgment of the district court. ■
In Wilkinson v. United States, 677 F.2d 998 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), a rented car driven by a sailor on business for the Navy collided with the plaintiffs automobile. At the time of the collision, the plaintiff knew that the other driver was employed by the Navy. There was no indication, however, that the plaintiff was aware that the driver was actually on government business. We rejected the plaintiffs assertion that the cause of action did not accrue until he learned that the sailor was acting within the scope of his employment at the time of the accident and thus was covered by the FTCA. Id. at 1000. Speaking for the majority, Judge Murnaghan emphasized that the government employee and government officials responded to the plaintiffs claim in a reasonable, timely and fair manner. Moreover, attorneys for the government in Wilkinson, like those in the case before us, “were not shown to have known that the accident had even occurred until a date more than two years after the accrual of the claim.... No less established is the fact that the Government has not behaved in any unfair way, and that, as between it and [plaintiff], the latter, or, more realistically, his counsel, brought about the consequences resulting from counsel’s inaction.” Id. at 1000-01. The same observations, it seems, could be made in the case at bar.
In Henderson v. United States, 785 F.2d 121 (4th Cir.1986), a substitute U.S. mail carrier collided with the plaintiffs automobile. Although the plaintiff had reason to know that the vehicle which struck her may have been a government vehicle, she argued that her cause of action did not accrue until she ascertained that the driver was a federal employee. In rejecting the argument, we held that there was sufficient information available to the plaintiff to put her on notice that the other driver was an agent of the federal government.
The rule which plaintiffs now propose would establish an exception that would change all precedents as to when a medical malpractice action accrues, and would be against the clear admonition in Kubrick that courts should carefully construe the statute of limitation for the FTCA so as not to extend the limited waiver of sovereign immunity beyond that which Congress intended. Id. 444 U.S. at 117-18, 100 S.Ct. at 356-57. Such a holding would greatly expand the rule that was unsuccessfully proposed by the dissent in Wilkinson, because it would place no burden upon a plaintiff or a plaintiffs attorney to exercise reasonable care, to investigate or to take any action to determine the employment status of an alleged tort-feasor.
The well-established rule is that once a prospective plaintiff learns of his injury, he is on notice that there may have been an invasion of his legal rights and that he should investigate whether another may be liable to him. Zeleznik v. United States, 770 F.2d 20, 22 (3d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1513, 89 L.Ed.2d 913 (1986).
While Wilkinson and Henderson, unlike Baker, arguably differ from the present facts because there was no indication that the defendants in the case sub judice were federal employees, Wilkinson and Henderson indicate that plaintiffs have an affirmative duty to inquire as to the legal identity of the defendant. There is no evidence that Mrs. Gould sought to ascertain or was denied access to information concerning the employment status of the treating physicians prior to the expiration of the limitations period. Neither is there evidence that the treating physicians “held themselves out as agents and employees of the private health facility” so as to mislead or deceive the plaintiffs or otherwise hide their legal identity as federal employees. Kubrick, Baker, Wilkinson and Henderson stand for the proposition that a cause of action accrues once the existence of an injury and its cause are known. The statute of limitations under the FTCA commences to run from the date of accrual and does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee.
The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled. In the case at bar, however, there is no evidence that the government stalled the discovery process or otherwise blocked plaintiffs from obtaining information within the limitations period. Indeed, the evidence is to the contrary. While it is true that the employment status of the attending physicians was not made known to plaintiffs at the time treatment was given, it is also true that plaintiffs made no inquiry as to the physicians’ employment status until August 1983. When asked, the government responded promptly to plaintiffs’ request for this information. Unfortunately, such requests were not made until the statute of limitations had expired. The district court correctly observed: “With the death and its cause discovered on September 4, 1980, due diligence is not present when an initial inquiry about who employed the tort-feasors is made 35 months later and then instituting the administrative tort claim two years after the inquiry.”
The facts indicate that plaintiffs failed to exercise due diligence. Indeed, there is nothing in the record to suggest that prior to August 1983 plaintiffs’ counsel made any effort to investigate the legally significant facts which plaintiffs contend would have been undiscoverable even if due diligence had been exercised. This argument, it seems, impliedly concedes that plaintiffs failed to exercise due diligence in investigating the elements of their claim. Plaintiffs have failed to meet their burden and duty of exercising due diligence.
The government is under no obligation to notify every prospective plaintiff of its identity and involvement through its employees in all potential legal actions. Van Lieu v. United States, 542 F.Supp. 862, 866 (N.D.N.Y.1982). The burden is on the plaintiff to discover the employment status of the tort-feasor and to bring suit within the applicable limitations period. See Des-si, 489 F.Supp. at 725 (“It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.”); Zelez-nik, 770 F.2d at 23 (once a party learns of his injury he is put on notice of a potential claim and “the burden is upon him to determine within the limitations period whether any party may be liable to him”).
It will not suffice for plaintiffs to assert baldly that “even due diligence would not have discovered the fact that the physicians” were federal employees. The burden is on plaintiffs to show that due diligence was exercised and that critical information, reasonable investigation notwithstanding, was undiscoverable. No evidence was offered to support the assertion that “critical facts” were undiscoverable. Indeed, the government’s prompt response to plaintiffs’ request for information contradicts this contention. No impediment, other than plaintiffs’ inaction, shielded the physicians’ legal identity. In summary, there is neither allegation nor evidence that the government delayed, misled or otherwise obstructed plaintiffs in determining the attending physicians’ employment status.
Plaintiffs’ construction of the limitations statute would obviate the necessity of due diligence, even when the injury and its cause are known and a minimum inquiry would have led plaintiffs to discover in a timely manner the employment status of the treating physicians. This approach would remove incentives for the timely investigation and prompt presentation of claims and would enable a plaintiff to maintain a FTCA action against the government years after plaintiff’s injury and its cause are well known if, for any reason, it escaped the plaintiff’s attention — even absent reasonable investigation — that the alleged tort-feasor was a government agent acting within the scope of his employment. An open-ended rule would vitiate the very purpose of the statute of limitations.
The plaintiffs further contend that their claim should not be barred by the statute of limitations because they were “blamelessly ignorant” of the federal government’s involvement, and such involvement could not have been presumed, implied or discovered, even after the exercise of due diligence. The Eighth Circuit, in Wollman v. Gross, 637 F.2d 544, 548-49 (8th Cir. 1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981), rejected the suggestion that the doctrine of “blameless ignorance” extends the date of “accrual” until the moment when the plaintiff becomes aware of the defendant’s status as a federal employee. The purpose of the statute of limitations is to require the reasonably diligent presentation of tort claims. This may require a plaintiff to obtain legal counsel promptly and together with counsel discover the critical facts and all of their possible legal ramifications so as to enable the plaintiff to bring suit within a reasonable time. Id. at 549. As stated by the Supreme Court in Kubrick:
A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.
Kubrick, 444 U.S. at 123, 100 S.Ct. at 360. See id. at 128, 100 S.Ct. at 362 (Stevens, J., dissenting) (“A plaintiff who remains ignorant through lack of diligence cannot be characterized as ‘blameless.’ ”); Sexton, 832 F.2d at 633.
When the facts of a case become so grave as to alert a reasonable person that there may have been negligence in a patient’s treatment, the statute of limitations begins to run against the claimant’s cause of action. See West, 592 F.2d at 492-93, quoting Hulver v. United States, 562 F.2d 1132, 1134 (8th Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978). In the case at bar the plaintiffs were immediately aware of the failure to properly diagnose and treat and knew that Drs. O’Rourke and Nathanson were the decedent’s attending physicians. With this information of the physicians’ errors followed by the patient's death, a reasonable person would have been alerted at the time of the death that such death may have been the result of medical negligence.
We are not unmindful that a strict adherence to the requirements of the statute of limitations provision under the FTCA often works a substantial hardship on plaintiffs and may have a harsh impact on a party innocent of any impropriety. Statutes of limitations often make it impossible to enforce what are otherwise valid claims. Although we recognize the hardship resulting to the plaintiffs in this case, we have no choice but to apply the law as written. To accept plaintiffs’ arguments would be rewriting the FTCA to allow broad, open-ended exceptions to §§ 2675(a) and 2401(b). Flickinger, 523 F.Supp. at 1376-77. “Although exceptions to the applicability of the limitations period might occasionally be desirable, we are not free to enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit.” Mann v. United States, 399 F.2d 672, 673 (9th Cir.1968). See also Wollman, 637 F.2d at 549. As the Supreme Court has instructed, it is clearly the prerogative of Congress, not the judiciary, to reform the terms and scope of waiver of sovereign immunity beyond that which Congress intended. Kubrick, 444 U.S. at 117-19, 100 S.Ct. at 356-358.
“It goes without saying,” as the Kubrick Court observed, “that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims.” Kubrick, 444 U.S. at 125, 100 S.Ct. at 361. Yet, they serve important, well-established purposes affirmed throughout our jurisprudence. We are bound to give them effect until such time as the creator of such provisions, the legislative branch, exercises its prerogative to amend the statute.
AFFIRMED.
. In his August 8, 1983, letter, plaintiffs’ attorney invited the Department to respond to his request by contacting him or his staff by telephone. The notes from office telephone conversations, identified in the record as defendants’ exhibit 11, show that HHS personnel attempted to contact the attorney by telephone as early as August 18, 1983. HHS personnel spoke with the attorney's secretary, but the attorney was apparently on vacation and unavailable until September.
. The suggestion is made by plaintiffs that the term "cause” means both the cause of the injury from a medical point of view and the legal identity of the alleged tort-feasors. Such a reading of the word "cause,” in this context, is not to be found in our legal precedents. Quoting Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir.1984), the Third Circuit rejected this broad interpretation of “cause”: "Discovery of the cause of one’s injury, however, does not mean knowing who is responsible for it. The 'cause’ is known when the immediate physical cause of the injury is discovered.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985).
. As in the case at bar, the plaintiff was unaware that the defendant driver was a federal employee, neither was there evidence apparent to others involved in the accident to put them on notice that the defendant was a federal employee acting within the scope of his employment.
. The plaintiff in Wilkinson arguably presented a more appealing case than the one before us today in that the case was initiated in a state court prior to expiration of the FTCA statute of limitations. Once the plaintiff was aware of the legal significance of the defendant driver’s status as a federal employee, plaintiff sought to remove the suit to federal court. Nevertheless, we barred the federal action because it was filed in federal court shortly after the FTCA statute had run.
Plaintiffs in the case at bar, however, apparently made no attempt to investigate or file their claim until two years and eleven months after plaintiffs knew of the injury and its cause. Plaintiffs did not file an administrative claim with the HHS until nearly five years after Mr. Gould’s death and nearly two years after receiving confirmation of the attending physicians’ work status. It was six and a half years after the injury before suit was initiated in federal court. Such delays by the plaintiffs surely put defendants at a disadvantage in defending the suit against them.
. We, of course, have no occasion to address the law where the injury is fully revealed but the tortfeasor is unknown and not readily identifiable.
. Several courts have held in automobile accident cases involving federal employees that the strict two-year statute of limitations should not bar claims in federal courts when a state court action or an administrative claim was initiated before the two-year period expired, thereby giving the government notice of such a claim within the limitations period. See e.g., McGowan v. Williams, 623 F.2d 1239 (7th Cir.1980); Cham-bly v. Lindy, 601 F.Supp. 959 (N.D.Ind.1985); Harris v. Burris Chemical, 490 F.Supp. 968 (N.D. Ga.1980). Such exceptions are not universally recognized in the federal courts. Moreover, an exception of this nature would not apply in this case since the plaintiffs did not initiate their first action until more than two years after the death of Mr. Gould.
. In oral argument, plaintiffs’ counsel excused plaintiffs’ failure to exercise due diligence prior to August 1983 by suggesting that Mrs. Gould was reluctant to relive this tragic episode through litigation, and it was not until the Spring or Summer of 1983 that Mrs. Gould felt sufficiently fortified to press forward with her claim. While one is sympathetic to her plight, this is not a legally recognized justification for sleeping on one’s claim. As the court acknowledged in Sexton v. United States, 832 F.2d 629, 636 (D.C.Cir.1987):
[A]ny statute of limitations that puts inquiry burdens on a plaintiff, as this one clearly does, see Kubrick, 444 U.S. at 123 & n. 10, 100 S.Ct. at 360 n. 10, entails a degree of ghoulish behavior. Patients or survivors, whose instinct may well be to shut off from their minds the grim experience through which they have passed, are required instead to follow up on their leads. For persons of any sensitivity this must be a difficult or even repugnant process. Yet, to protect defendants from stale claims, legislatures put potential plaintiffs to the hard choice of proceeding with such inquiries or risking loss of possible claims.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_respond2_1_4
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Abraham BENJAMINS, as Personal Representative of the Estate of Hilde Ben-jamins, Deceased, Plaintiff-Appellant, v. BRITISH EUROPEAN AIRWAYS, Hawker Siddeley Aviation, Ltd., and Hawker Siddeley Group, Ltd., Defendants-Appel-lees.
No. 111, Docket 77-7201.
United States Court of Appeals, Second Circuit.
Argued Oct. 21, 1977.
Decided March 6, 1978.
Van Graafeiland, Circuit Judge, filed dissenting opinion.
Ronald L. M. Goldman, Marina del Rey, Cal. (Ronald L. M. Goldman & Associates, Marina del Rey, Cal., on brief), for plaintiff-appellant.
George N. Tompkins, Jr., New York City (Condon & Forsyth, Ronald E. Pace and Michael J. Holland, New York City, on brief), for defendant-appellee British European Airways.
James J. Finnerty, Jr., New York City (Mendes & Mount, New York City, on brief), for defendant-appellee Hawker Siddeley Aviation, Ltd.
Before LUMBARD, FEINBERG and VAN GRAAFEILAND, Circuit Judges.
LUMBARD, Circuit Judge:
This appeal, arising out of the death of Hilde Benjamins in the air crash disaster at Staines, England, on June 18, 1972, once again presents us with the much-discussed question whether the Warsaw Convention creates a cause of action. The District Court for the Eastern District dismissed the complaint herein, believing itself bound by our prior decisions to answer that question in the negative. We reverse.
I
On June 18, 1972, a Trident 1 Jet Aircraft — designed and manufactured by Hawker Siddeley Aviation, Ltd. [“HSA”], and owned and operated by British European Airways [“BEA”] — took off for Brussels from London’s Heathrow Airport. Soon thereafter, the plane stalled and crashed into a field, killing all 112 passengers, including Hilde Benjamins. Hilde Benjamins was survived by her husband Abraham; both were Dutch citizens permanently residing in California. BEA and HSA are British corporations with their principal places of business in the United Kingdom. The ticket on which Hilde Benjamins was travelling had been purchased in Los Ange-les, and clearly provided “international transportation” within the meaning of Article 1 of the Convention. Therefore, since the United States and the United Kingdom are both High Contracting Parties, the Convention is applicable to this proceeding.
This suit for wrongful death and baggage loss was brought in April of 1974 in the Eastern District of New York by Abraham Benjamins, as representative of his widow’s estate, on behalf of himself and the children of the marriage. Benjamins’ action was consolidated with a number of others arising out of the same incident, and assigned to Judge Weinstein. In re Air Crash Disaster at Staines, England, MDL No. 147 (J.P. M.D.L.). The major allegations in the complaint invoked Articles 17 and 18 of the Convention. These read, in relevant part, as follows:
Article 17. The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18(1). The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.
Dismissed once for lack of subject matter jurisdiction — only diversity was originally alleged — the complaint was amended to invoke 28 U.S.C. §§ 1331 and 1350 as well. After both sides had submitted briefs, Judge Weinstein ruled that this suit did not “arise” under a treaty of the United States, as § 1331 requires; he relied on Second Circuit precedent indicating that the Convention does not create a cause of action, but only establishes conditions for a cause of action created by domestic law. This appeal followed.
II
The first question we address is whether any court in this country has jurisdiction in the “international or treaty sense.” Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971). Only then may we consider “the power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case — jurisdiction in the domestic law sense.” Id.
Jurisdiction in the treaty sense is determined by Article 28(1) of the Convention, which provides that
[a]n action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.
The third alternative of Article 28(1) is satisfied in this case: the ticket which constituted the contract of carriage was purchased in Los Angeles, through BEA. The fourth alternative appears also to fit, as decedent’s round-trip ticket provided for an ultimate destination in the United States.
Nonetheless, courts in the United States, and particularly the federal courts, are not the only possible forum for Abraham Benjamins. The courts of England are open to his suit — permitted by the first and second alternatives of Article 28(1) — as are the state courts of California. Plaintiff’s burden is not met by a showing that Article 28(1) permits some court of this country to hear his complaint; he must further show that some jurisdictional statute permits a federal court to do so.
Ill
The two bases for federal jurisdiction pleaded in Benjamins’ amended complaint are the Alien Tort Claims Act, 28 U.S.C. § 1350, and a general federal question “arising under” a treaty.
The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that Benjamins’ complaint alleges a violation of neither the law of nations nor any treaty of the United States.
The Convention itself does not seek to outlaw accidents, crashes and other events causing death, injury or property loss. Rather, it sets forth the terms under which victims of such events may recover their damages. Airlines do not “violate” the Convention when they crash — even if their negligence was “wilful” — but only when they fail to compensate victims who are adjudged to be appropriate recipients of damages. The fact that a claimant must bring an action to recover does not constitute a violation by the carrier of its obligations.
Nor do the acts alleged violate the law of nations under the standards we set in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) : “a violation ... of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” See Dreyfus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976) . This law does not include a prohibition of air crashes.
IV
Accordingly, we must determine whether any of the causes of action pleaded by Benjamins “arise under” the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer.
A
At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, “If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.” Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.1951), aff’d mem., 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept. 1953).
The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev’g on other grounds, 111 F.Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957):
The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself.
Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967).
The analysis on which this structure of holding rests is to be found in Judge Lei-bell’s opinion for the district court in Kom-los. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. Ill F.Supp. at 401-02.
Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote:
The effect of article 17 (ch. Ill) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier.
[1934] U.S.Av.Rep. 240, 243. This was seen by Judge Leibell as clear evidence that the Convention created only presumptions, not new causes of action.
In reversing Judge Leibell on another issue, we did not refer to the portion of his opinion discussed above, or, indeed, even mention the Warsaw Convention. 209 F.2d at 438-40. Nonetheless, in Noel, we followed our opinion in Komios, which, we said, had “impliedly agreed” with Judge Leibell. 247 F.2d at 679. Though most of our opinion in Noel was devoted to disapproving Judge Leibell’s suggestion that Article 17 might create a cause of action for wrongful death where domestic law did not, it is apparent that — however founded— Noel, as the law of this circuit, stands for the proposition that the Convention does not create a cause of action. See, e. g., Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1251-52 (S.D.N.Y.1975).
Recently, an inconsistency has developed between this rule and another line of Warsaw cases we have decided. For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977), we indicated — without addressing the question in the instant case — that “the Convention was intended to act as an international uniform law,” id. at 1083, and that the substantive law of the Convention was binding on the forum, id. at 1092. The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded on the Convention itself, rather than on any domestic law.
B
1. The minutes and documents of the meetings, held in 1925 and 1929, which led to the adoption of the Convention do not specifically indicate whether the parties contemplated that an action for damages under the Convention would arise under the terms of the treaty or those of domestic law. What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters; see Articles 21, 24(2), 28(2)).
The delegates were concerned lest major air crash cases be brought before courts of nations whose courts were not (according to current Western standards) well organized, nor whose substantive law (according to the same standards) progressive. To avoid the “prospect of a junglelike chaos,” Reed v. Wiser, supra, 555 F.2d at 1092, the Convention laid down rules that were to be universally applicable. While it is not literally inconsistent with this universal applicability to insist that a would-be plaintiff first find an appropriate cause of action in the domestic law of a signatory authorized by Article 28 to hear his claim, it is inconsistent with its spirit. This inconsistency is an argument against the rule of Noel and Komlos, for the Convention is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal reading. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966).
2. Other articles of the Convention throw some light on the question whether Articles 17 and 18 create causes of action. Article 30(3) provides that in the case of transportation by several carriers constituting one undivided transportation,
[a]s regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place. .
The most reasonable interpretation of this section is that Articles 18 and 30(3) create a cause of action against the appropriate carrier when more than one carrier is involved. See Seth v. British Overseas Airways Corp., 329 F.2d 302, 305 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964): “Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States.” There is no reason to believe that the Convention’s effect is any different when only one carrier is involved.
Article 24 has been cited by proponents of both views of the Convention. In the French version — the only official version— the Article reads:
(1) Dans les cas prévus aux articles 18 et 19 toute action en responsabilité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention.
(2) Dans les cas prévus á l’article 17, s’ap-pliquent également les dispositions de l’alinéa précédent .
The unofficial translation reads:
(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply. .
The crucial phrases, of course, are “however founded” (“a quelque titre que ce soit”), and “conditions” (“conditions”). There is no internal evidence to indicate whether “however founded” was intended to refer to a number of possible domestic law sources or to a number of possible factual bases for the envisioned action.
As to “conditions,” that term in English does imply that the source of the action must be sought elsewhere than the Convention, which supplies only conditions and limits. Nonetheless, there is some evidence for the view that the French has not been so translated here as to provide the best interpretation of the delegates’ meaning, and that “basis” or “terms” would be a closer translation in this context of “conditions.” Calkins, supra, 26 J. Air L. & Comm, at 225-26. The arguments as to Article 24 are not conclusive either way.
3. More compelling is the evidence of how other signatories of the Convention have interpreted its provisions. The clearest picture is found in other common-law jurisdictions. In the statute enacting the original 1929 Convention in the United Kingdom, it was provided that
[a]ny liability imposed by Article seventeen of the said [Warsaw Convention] on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any statute or at common law . ...
Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, § 1(4). When the Convention was reenacted as amended at the Hague in 1955, Carriage by Air Act, 1962, 9 & 10 Eliz. 2, c. 27, this language was omitted, but there is no indication that any change of substantive law was intended. No case law since 1962 has demonstrated that the source of carrier liability lies anywhere but in the Convention. See also Carriage by Air Act, 1939, 3 Geo. 6, c. 12 (Canada).
V
The fact that a proposition of law has been accepted for some twenty years is evidently a sign that circumspection is needed in seeking to overturn that proposition. We recognize that our holdings in Komlos and Noel have become the rule not of this circuit alone, but of others as well. See, e. g., Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Nonetheless, we are convinced that — in light of both the paucity of analysis that accompanied the creation of the rule and the strong arguments in favor of the opposite rule — the Komlos/Noel rule ought no longer to be followed.
We do not believe that the passing remark of Secretary Hull in a lengthy letter was intended to state the total of what Article 17 might provide; we do not see what there was about our decision in Kom-los that constituted implicit agreement with Judge Leibell, and compelled the result in Noel; we do not find technical and disputable interpretations of the language of other articles of the Convention conclusive in determining this important question of policy.
We do, on the other hand, believe that the desirability of uniformity in international air law can best be recognized by holding that the Convention, otherwise universally applicable, is also the universal source of a right of action. We do see that uniformity of development can better be achieved by making federal as well as state courts accessible to Convention litigation. We do find the opinions of our sister signatories to be entitled to considerable weight.
One factor which makes federal jurisdiction peculiarly appropriate in large air crash cases was not present at. the time Komlos and Noel were decided. Section 1407 of 28 U.S.C., enacted by Pub.L.No.90-296, 90th Cong., 2d Sess., 82 Stat. 109 (April 29,1968), created the Judicial Panel on Mul-tidistrict Litigation, and authorized the creation of the procedures found in the Manual for Complex Litigation. These procedures, such as consolidation and assignment to one expert judge, can — by reducing expenses and expediting dispositions — benefit all parties to air disaster actions, in which the plaintiff/victims may come from many different parts of the country. Obviously, these procedures are unavailable among the courts of the several states.
Finally, we do not anticipate any large increase in the volume of federal litigation as a result of our holding. Most cases will fall under 28 U.S.C. § 1332, as they do today; only when plaintiffs and defendants are all aliens, but the United States is a nation with treaty jurisdiction, will it be necessary to invoke 28 U.S.C. § 1331.
VI
Accordingly, we reverse Judge Wein-stein’s order of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA.
Reversed and remanded for further proceedings consistent with our opinion.
. Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention].
. Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought the matter not free from doubt, and commended the question to our careful attention.
. Jurisdiction over HSA is alleged under principles of pendent jurisdiction.
. Personal jurisdiction is not an issue in this case, as each defendant has submitted to the in personam jurisdiction of the court.
. Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue is no concern of Article 28(1), 452 F.2d at 800-01. It answers only the question “whether suit may be brought at all in the courts of the United States,” whether state or federal and regardless of location. Id. at 800 n. 3.
. The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
. But see Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup.Ct.1943), aff’d, 267 App.Div. 947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878, 59 N.E.2d 785, cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1944).
. Some commentators, at least, have attributed this to its being taken for granted that the Convention itself supplied the cause of action. E. g., Lowenfeld & Mendelsohn, supra, 80 Harv. L.Rev. at 517. A stronger statement comes from the Chairman of the United States Delegation to the Hague Conference to Amend the Warsaw Convention, G. Nathan Calkins:
[T]he author is convinced that the draftsmen of the Convention intended to create a right-of-action based on the contract of carriage; that the draftsmen did in fact carry this intention out in the Convention as signed; that it is self-executing; and therefore the supreme law of the land today.
Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air L. & Comm. 217, 218 (1959).
. We note that, after Noel, not even the total lack of an appropriate cause of action at domestic law would permit an action to be founded on the Convention itself.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
NORTON CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 2534.
Circuit Court of Appeals, First Circuit.
June 10, 1931.
James W. Mudge, of Boston, Mass. (Ropes, Gray, Boyden & Perkins, of Boston, Mass., on the brief), for petitioner.
J. Louis Monarch, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Andrew D. Sharpe and John MacC. Hudson, Sp. Assts. to Atty. Gen., and C. M. Charest, Gen. Counsel, and De Witt M. Evans, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for Commissioner of Internal Revenue.
Robert N. Miller and Ward Loveless, both of Washington, D. C., amici curiae.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
ANDERSON, Circuit Judge.
This petition for a review of an adverse decision of the Board of Tax Appeals (19 B. T. A. 1234) involves petitioner’s income and profits tax for 1919 of $82,779.78. The controlling issue of law is whether the Commissioner was precluded from reducing the taxpayer’s amortization allowance, made on April 8, 1924, under section 234 (a) (8) of the Revenue Act of 1918 (40 Stat. 1057, 1077), by making another allowance in 1927.
The facts, conclusive on us, as in effect found by the Board of Tax Appeals, are as follows:
(1) The petitioner, which is a Massachusetts corporation with principal office at Worcester, claimed a deduction for amortization in the amount of $1,296,133.68 under the' provisions of section 234 (a) (8) of the Revenue Act of 1918 in connection with amended tax returns for the years 1918 and 1919 filed with the Commissioner on or about December 15,1921, and supported its claims by submission to the Bureau of a detailed and comprehensive report of an appraisal company and-subsequently further supported its claim by submission to the Bureau of a brief dated May 29, 1922, and a letter addressed to the Bureau engineer assigned to the field investigation of the petitioner’s amortization claim, to which letter there were attached sundry schedules containing supplemental information requested by the engineer together with additional data.
(2) Under date of January 5, 1923, the Bureau engineer assigned to the field investigation of petitioner’s amortization elaim submitted his report upon the elaim recommending an amortization allowance of $1,002,977.-30 in lieu of the amount claimed hy the petitioner ($1,296,133.68) and of such allowance of $1,002,977.30 allocating $981,647.89 to the year 1918 and $21,615.74 to the year 1919. The said report was signed by H. F. Coombs, as “Engineer,” by W. T. Jennings as “Reviewing Engineer,” and by S. T. De La Mater as “Chief of Section.”
(3) Under date of June 15,1923, the petitioner submitted to the Bureau a brief: “Re Revision of income, war and excess-profits tax returns for the calendar years 1918 and 1922, inclusive.” In this brief petitioner referred to the engineer’s report of January 5, 1923 (described in the preceding paragraph), as a report in which—
“ ® * * The Bureau of Internal Revenue, Amortization Section, stated the final results of an examination of the company’s elaim for amortization by an engineer from the Amortization Section, * * * ”
■ — and thereupon readjusted all of its computations affected by the amortization allowance to accord with the amortization allowance contained in said report of the Bureau engineer.
(4) Under date of February 29,1924, the Internal Revenue agent assigned to conduct a field examination of petitioner made his report to the Commissioner, and in such report recommended the same allowance for amortization as that previously allowed by the Amortization Section of the Bureau.
(5) Under date of April 8,1924, the Bureau addressed to the petitioner'a letter as follows:
“Treasury Department,
“Office of Commissioner of Internal Revenue,
“Washington, April 8, 1924.
“IT :CR: E W W C-App.
“Norton Company, Worcester, Massachusetts.
“Sirs: Reference is made to your request dated June 15, 1923, that your profits taxes for the years 1918 and 1919 be computed under the provisions of Sections 327 and 328 of the Revenue Act of 1918.
“Before consideration can be given your ■ application there must be a final determination of your net income; therefore it will be) necessary for you to advise this office within ten days from the date of this letter of your acquiescence in the determination of your net income as shown in schedules attached or exceptions, if any, which you make thereto.
“Respectfully,
“J. G. Bright, Deputy Commissioner.
“Enclosure: Statement Schedules 1 to 17, incl.”
To this letter were attached schedules embodying the detailed determination of net income for the years 1918 and 1919, and in these schedules amortization was allowed in the amounts recommended by the engineers of the Amortization Section.
(6) Under date of April 16,1924, the petitioner submitted to the Bureau its statement of exceptions to determination of net income and invested capital for the years 1918 and 1919, as shown in the Bureau letter of April 8,1924, referred to in item 5 preceding; this statement, however, including no exception with respect to the amortization deduction allowed by the Bureau in the said letter of April 8,1924.
(7) Under date of May 23, 1924, the petitioner submitted to the Bureau a letter in reply to the Bureau’s letter of April 8,1924; such reply being as follows:
“May 23, 1924.
“Commissioner of Internal Revenue, Washington, D. C.
“Sir: I, Aldus C. Higgins, Treasurer of the Norton Company, a corporation having its principal office at New Bond Street, Worcester, Massachusetts, do hereby agree to and acquiesce in the determination of the net income of the Norton Company for the calendar years 1918 and 1919, as set forth in Treasury Department letter of April 8,1924, symbols IT:CR:E WWC-App, except for the reservations contained in our brief dated April 16,1924, in the amounts therein stated, as follows:
“Calendar Tear 1918.
“1. Deduction is claimed of depreciation upon patente and contract.
“2. Depletion is claimed on Bauxits Mined.
“Calendar Year 1919.
“1. Deduction is claimed of depreciation upon patents and contracts.
“2. Loss is claimed on account of liquidation of the General Electro-Chemical Company.
“Respectfully submitted,
“Aldus C. Higgins.”
(8) At this time, namely, not later than May 23, 1924, the petitioner had submitted to the Bureau all the information and data which it cared to introduce or which the Bureau’s representatives had requested, as bearing upon or affecting its amortization allowance, and it was the understanding of the petitioner’s officers at that time that the amortization allowance made (as set forth in the Bureau’s letter of April 8, 1924, see item 5 hereof) was final and complete; and the petitioner evidenced its belief that the amortization .allowance thus determined was final and complete by removing from its idle amortizable equipment tags which had previously been placed upon such equipment for the purpose of identifying it as equipment acquired subsequent to April 5, 1917, and as therefore subject to amortization.
(9) Subsequent to May 23, 1924, the petitioner negotiated further with the Bureau in respect of the exceptions taken by it as described in item 6 of this statement of facts, but in such negotiations no reference whatever was made, either by the petitioner or by the representatives of the respondent, to the amortization allowance, and none of the exceptions thus considered affected or were affected by the allowance for amortization of war facilities under section 234 (a) (8) of the statute.
(10) In the autumn of 1926, approximately two and one-half years after the letters of April 8, 1924, from the Bureau, and í\Iay 23, 1924, from the petitioner the respondent transmitted to the petitioner its first intimation that the amortization settlement, as evidenced by the said 1924 letters, was to be reopened, and the Bureau based its 'desire to reopen that settlement and redetermine amortization expressly upon the existence of the then “present rulings of the General Counsel,” and the necessity for consideration by the Bureau of “additional data,” further intimating that failure on the part of the petitioner to co-operate would result in an “arbitrary disallowance of a very large portion of the previous amortization allowance.” Following this letter of the Bureau, representatives of the petitioner conferred in person with the ehief of the amortization section, on November 16', 1926, for the purpose of learning why the Bureau proposed to reopen the amortization matter, and were given, as the reason, that “the original computation had not been made in accordance with the present methods of the Department”, and that the Bureau therefore “wanted additional information,” and were further told that unless the petitioner furnished such additional information “an arbitrary computation would have to be made which would probably not be favorable to the Company.”
(11) The petitioner did not at any time, either before or after March 3, 1924, request the Commissioner or the Bureau to re-examine the petitioner’s return with respect to amortization and to redetermine its amortization allowance. The petitioner did submit, under date of December 15; 1926, a “Revised Claim for Amortization,” made up on a basis then indicated by the Bureau’s representatives as in conformity with their then rulings, but that document was submitted in part because of the consistent practice of the petitioner to co-operate with the Bureau and in part because of the insistence of the Bureau’s representatives as described in item 10 hereof, and their intimation that, unless the material was submitted an arbitrary and unfavorable adjustment would be made.
The petitioner’s representatives were under the impression that the Bureau was within its rights in demanding the submission of revised amortization data and in reopening the examination of amortization and in submitting the additional data submitted on December 15, 1926, the petitioner’s representatives had no intention of waiving any of the petitioner’s legal rights, and did not waive such rights. In the letter from the petitioner’s representatives to the Commissioner transmitting the above described “revised claim for amortization,” there was contained the following paragraph:
“The report of the amortization engineer on the original claim for amortization was made under date of January 5, 1923. This report was subsequently incorporated in the computations of the income-tax unit in its determination of the taxable net income for the calendar years 1918 and 1919. It is now nearly four years since that date, and the taxpayer had every reason -to believe that a final determination of its amortization allowance had been made.”
(12) Under date of November 4, 1926, the petitioner, by letter, requested the Commissioner to expedite the consideration of its income tax returns for the years 1917 to 1920, inclusive. Petitioner was advised on November 8, 1926, that a conference would be arranged at an early date, not later than November 18, 1926, due to the imminence of the expiration of the statute of limitations, and, in order to allow sufficient time for the proper consideration of the amortization question, waivers extending the statute of limitations should be submitted. A conference was held shortly thereafter in "Washington, with an engineer of the Amortization Section, as a result of which the petitioner filed its revised amortization claim of December 15, 1926.
(13) Further investigation of petitioner’s claim for amortization was made by Engineer Griffith, who submitted a report thereof dated July 8, 1927. The last determination of petitioner’s claim for amortization was made by respondent on December 26, 1927, when the deficiency letter upon which this petition is based was mailed.
(14) On page 3 of the report of Engineer William F. R. Griffith, dated July 8, 1927, referred to in finding of fact numbered 13, pursuant to which report of the Commissioner’s last determination of amortization, contained in the deficiency letter of December 26,1927, was made, there appears the following explanation of the occasion for the report:
Engineer Coombs made a field investigation of this claim in October, 1922, and submitted his report on January 5, 1923. In his report amortization was disallowed on a number of facilities and a number of the facilities were found to have been sold or discarded. Amortization has been allowed on the balance of the facilities practically as claimed.
Since Engineer Coombs’ report was submitted, S. .M. 4225 has been promulgated, which states as follows:
Both excess capacity and lowered replacement cost can be given consideration on the same facilities only in the case of individual items when the post-war cost of a similar facility of the proper size is definitely established.”
The case was returned to the Engineering Division from the Consolidated Return Division in April, 1926, for reconsideration of the amortization allowance.
The question presented involves the following statutes: Revenue Act of 1918, c. 18, 46 Stat. 1057, 1077:
“See. 234. (a) That in computing the net income of a corporation subject to the tax imposed by section 236 there shall be allowed [as deductions]: * * *
“(8) In the ease of buildings, machinery, equipment, or other facilities, constructed, erected, installed, or acquired, on or after April 6, 1917, for the production of articles contributing to the prosecution of the present war, and in the case of vessels constructed or acquired on or after such date for the transportation of articles or men contributing to the prosecution of the present war, there shall be allowed a reasonable deduction for the amortization of such part of the cost of such facilities or vessels as has been borne by the taxpayer, but not again including any amount otherwise allowed under this title or previous Acts of Congress as a deduction in computing net income. At any time within three years after the termination of the present war the Commissioner may, and at the request of the taxpayer shall, reexamine the return, and if he then finds as a result of an appraisal or from other evidence that the deduction originally allowed was incorrect, the taxes imposed by this title and by Title III for the year or years affected shall be redetermined and the amount of tax due upon such redetermination, if any, shall be paid upon notice and demand by the collector, or the amount of tax overpaid, if any, shall be credited or refunded to the taxpayer in accordance with the provisions of section 252.”
The Revenue Act of 1921, c. 136, 42 Stat. 227, 254, contains, for present purposes, the same provision, substituting March 3, 1924, for the phrase “within three years after the termination of the present war.” Section 234 (a) (8). By section 278 (b) of the Revenue Acts of 1924 (chapter 237, 43 Stat. 366) and of 1926 (chapter 26-, 44 Stat. 9) it is provided :
“Sec. 278 * * * '(b) Any deficiency attributable to a change in a deduction tentatively allowed under paragraph (9) of subdivision (a) of section 214, or paragraph (8) of subdivision (a) of section 234, of the Revenue Act of 1918 or the Revenue Act of 1921, may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.” 26 USCA § 1659.
These statutes make March 3, 1924, the /‘dead line,” both for applications by the taxpayer for amortization allowances, and for the Commissioner to begin the determination of such allowances, but do not prevent the Commissioner from thereafter completing a determination begun before March 3, 1924. Counsel on both sides are agreed on this construction of the statutes.
The Commissioner contends that petitioner’s claim for amortization was in process of audit continuously from 1921 to 1927; that the only conclusive determination thereof was that made in 1927. The petitioner contends that there was final or conclusive determination of the amortization allowance on or before April 8,1924, and that the Commissioner was without authority thereafter to institute a redetermination.
Exhibit 22 (a), put in the record by the Commissioner, sets forth the organization of the Bureau of Internal Revenue under Office Order No. 715, dated February 21, 1923. Under the title “Organization of the Income Tax Unit,” it provides, under section 12:
“The Head of the Special Audit Division will supervise and be responsible for the operation of the following sub-division and sections: * * *
“E. The Amortization Section, which will initiate the audit of all claims under section 214 (a) (9) of the War Revenue Act of 1918, for amortization of investments in war facilities, and determine in all eases of claims for amortization the allowable deductions on this account.”
The facts found (paragraph 2, supra) show that this Amortization Section made its report under date of January 5, 1923, duly signed by the engineers and by the Chief of Section. This report reduced the taxpayer’s claimed allowance for amortization by nearly $309,000. The taxpayer accepted this reduction, and readjusted all its computations in accordance therewith, and applied, under date of June 15, 1923', for special relief under sections 327 and 328 of the Revenue Act of 1918. These sections (40 Stat. 1093) provide for special relief, where, owing to abnormal conditions affecting the' capital and income of the taxpayer, a tax, determined without reference to these sections, would be grossly disproportionate to the taxes imposed on comparable representative corporations. As indicated in the respondent’s letter of April 8, 1924, final determination of the taxpayer’s net income is necessary before consideration can be given to the special relief provided under these sections. They operate only on the rate — not on the net income. The necessary implication of this letter of April 8, 1924, is that the Commissioner had finally determined the amortization allowance; that nothing remained in abeyance except the formal assent of the taxpayer to that allowance, as well as to other items involving the amount of the net income, as shown in the schedules attached to the letter. The taxpayer’s reply, on May 23, 1924, accepted the Commissioner’s audit, with certain reservations; but these reservations have no connection with the allowance for amortization. The facts found show that only the named reservations remained undetermined; that on their determination the audit would be ripe for considering special relief under sections 327 and 328, supra.
Owing to a change in the rulings of the general counsel of the Internal Revenue office, nearly two and a half years later, the Commissioner notified the taxpayer that the amortization allowance was to be reopened. While the taxpayer co-operated with the Commissioner, it waived no legal rights. A change in the policy of the Tax Bureau cannot affect rights already settled.
The nature of amortization proceedings grounded good reason for the special limitation contained in the legislation therefor.
The value of the extra or special equipment of a manufacturing plant with facilities for producing war supplies could only, be determined after a reasonable time afteri the war. On the other hand, to prolong the investigation of the cost and amount of such facilities, that must be entirely or largely charged off as either useless or of greatly decreased value, would necessarily involve much confusion, divert the executives’ attention from the regular administration of their business, and be, in general, an expensive and wasteful process, both for the Tax Bureau and for the taxpayer.
Significance attaches to the fact that there is no statutory provision for a' waiver of this special limitation provision. The taxpayer cannot apply, even with the assent of the Commissioner, after March 3, 1924; the Commissioner may not begin a determination of an amortization allowance after March 3, 1924; only an uncompleted return, begun before March 3, 1924, may be completed thereafter.
We think that the Board’s ruling in this case that, “so long as any part of the petitioner’s audit was in abeyance, the entire audit was in abeyance,” is plainly inconsistent with the purpose of Congress in providing for a special limitation upon amortization determinations. In effect, the ruling of the Board would nullify this special time limit; for other items of a tax audit may be indefinitely extended, beyond the four or five years’ limit, by agreement betwefen the Commissioner and the taxpayer. T© tie up amortization allowances with every other item entering into a tax audit would plainly make the special limitation nugatory.
It should also be noted that, while the statutes of 1924 and 1926, supra, expressly-provided for tentative allowances, the letter of April 8, 1924, neither contained the word “tentative,” nor were the surrounding facts consistent with any purpose to make such allowance tentative. On the contrary, all the proceedings in the Internal Revenue office necessarily implied that, on the taxpayer’s acceptance of the substantially reduced allowance of the taxpayer’s claim by the amortization section of the Tax Bureau, that part of the basis of the petitioner’s ultimate tax should be regarded as finally settled. To repeat, the taxpayer accepted the Bureau’s findings, and the Commissioner conclusively indicated that this matter was closed.
To sustain the ruling of the Board that the amortization remained open until December 27,1927, over nine years after the Armistice, and over three and a half years after the “close of the war,” would be to nullify the plain intent of Congress. It would require plain language to justify leaving, for this unduly prolonged period, over a million dollars’ worth of manufacturing facilities subject to repeated appraisal. It is inconsistent with repeated, cited, rulings of the solicitor of the Internal Revenue Bureau.
The case of Ohio Falls, etc., Works v. Commissioner, 16 B. T. A. 1038 [affirmed June 13, 1931, 50 F.(2d) 660 (C. C. A. (6th)] is clearly contrary to the decision of the Board in the present ease. If the Board was right in that case, it was wrong in this case.
We are constrained to the conclusion that the Commissioner’s attempt to reopen the amortization allowance in 1926 or 1927 was ultra vires; that, under the circumstances here disclosed, the amortization allowance had been conclusively determined on or before April 8,1924.
The order or decision of the Board of Tax Appeals is reversed, and the ease is remanded to that Board for further proceedings not inconsistent with this opinion.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_execord
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of executive order or administrative regulation by the court favor the appellant?" This does include whether or not an executive order was lawful. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
COASTAL STATES ENERGY COMPANY, Plaintiff-Appellant, v. Donald P. HODEL, Secretary of the United States Department of the Interior; Robert F. Burford, Director of the Bureau of Land Management, United States Department of the Interior; Robert Lopez, Chief, Minerals Section, Utah State Office of the Bureau of Land Management, United States Department of the Interior; and the United States Department of the Interior, Defendants-Appellees. Sierra Pacific Power Company; Utah Mining Association; State of Utah; Unelco, Inc., Amicus Curiae.
No. 86-1301.
United States Court of Appeals, Tenth Circuit.
April 9, 1987.
Rehearing Denied July 8, 1987.
Lawrence E. Stevens (Patrick J. Garver and Patricia J. Winmill of Parsons, Behle & Latimer, Salt Lake City, Utah; and Brian E. McGee of Parcel & Mauro, Denver, Colo., with him on the briefs), for plaintiff-appellant.
Peter Stirba, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for defendants-appellees.
John Madariaga and Margaret A. Manes, Reno, Nev., for amicus curiae Sierra Pacific Power Co.
David L. Wilkinson, Dallin W. Jensen and Michael M. Quealy, Salt Lake City, Utah, for amicus curiae State of Utah.
K.L. Mclff of Jackson, Mclff & Mower, Richfield, Utah, for amicus curiae Unelco, Inc.
James T. Jensen, Price, Utah, for amicus curiae Utah Mining Ass’n.
Before LOGAN, MOORE and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
This dispute concerns a readjustment by the Secretary of the Interior of the terms and conditions of two coal leases between the United States and Coastal States Energy Company, the latter a Texas corporation which operates an underground coal mine, known as the SUFCo Mine, in Sevier County, Utah. On administrative appeal, the Interior Board of Land Appeals (IBLA) upheld, in the main, the readjustments made by the Bureau of Land Management (BLM), holding that the readjustments were timely made and were themselves lawful. Coastal States Energy Co., 70 IBLA 386 (1983). Thereafter Coastal filed a petition for review in the United States District Court for the District of Utah. After discovery, Coastal and the Secretary filed motions for summary judgment. The district court granted summary judgment for the Secretary on all of Coastal’s claims except the third claim. Subsequently, additional evidentiary matter bearing on the third claim was given the district court. Then, after further hearing, the district court granted the Secretary summary judgment on Coastal’s third claim. The district court’s opinion entering summary judgment in favor of the Secretary on all of Coastal’s claims appears as Coastal States Energy Co. v. Watt, 629 F.Supp. 9 (D.Utah 1985). On appeal, we affirm with one exception. The instant case is a companion case to FMC Wyoming Corporation v. Hodel, 816 F.2d 496 (10th Cir.1987).
Coastal, as the successor in interest, holds two leases issued by the Secretary under the Mineral Lands Leasing Act of 1920 (MLLA), 41 Stat. 437 (1920), amended by 30 U.S.C. § 201 et. seq. (1976), permitting underground coal mining in Sevier County, Utah. The first lease, designated as the SL lease, was entered into on September 11, 1941. The second lease, designated the U lease, was executed on March 1, 1962. MLLA (1920) provided that coal leases issued by the Secretary would be for an indeterminate term, but subject to the right of the Secretary to readjust the terms of the lease at the end of each 20-year period following the date of issuance of the lease. 41 Stat. 437, § 7 (1920). In accord with the provisions of MLLA (1920), both of Coastal’s leases provided for readjustment of terms and conditions at the end of each 20-year period following the date of issuance of the lease.
Coastal’s SL lease had its first 20-year anniversary date on September 11, 1961. At that time the SL lease was readjusted by the Secretary, the readjustment including raising the royalty rate from ten cents to fifteen cents per ton of coal mined.
The second 20-year anniversary date for the SL lease was September 11, 1981. On July 9, 1981, 63 days before the September 11, 1981, anniversary date, BLM sent notice to Coastal of its intent to readjust the terms and conditions of the SL lease. The readjusted terms and conditions of the SL lease were sent Coastal on September 28, 1981. Coastal objected to the readjusted terms and conditions. The BLM, on March 18, 1982, dismissed these objections, and, as above indicated, on February 9, 1983, the IBLA, on administrative appeal, upheld in major and pertinent part the decision of BLM. Coastal States Energy Co., 70 IBLA 386 (1983).
Coastal’s U lease had its first 20-year anniversary date on March 1, 1982. On October 9, 1981, over five months before the March 1, 1982, anniversary date, the Secretary gave notice to Coastal of his intent to readjust the terms and conditions of the U lease. On December 24, 1981, slightly more than two months before the March 1, 1982, anniversary date, BLM sent the readjusted terms and conditions to Coastal. Coastal’s objections to the readjustments to the U lease were dismissed by the BLM in its decision of March 18, 1982, and BLM’s action in regard to the U lease changes was upheld with one minor exception by the IBLA in its decision of February 9, 1983. 70 IBLA 386. Coastal then sought judicial review of the IBLA’s decision of February 9, 1983, as such relates to both leases.
I. Timeliness of the Readjustment
Section 7 of MLLA (1920) provides that a coal lease issued pursuant to the Act shall be for an indeterminate period, but upon the condition that “at the end of each 20-year period” succeeding the original date of the lease the Secretary may readjust the terms and conditions of the original lease. Coastal’s two leases contain language tracking the statutory language. In the companion case of FMC Wyoming Corp. v. Hodel, 816 F.2d 496 (10th Cir.1987), we found that notice of intent to readjust the terms and conditions of a coal lease sent on or before the anniversary date preserves the Department’s right to readjust the terms within a reasonable time thereafter. Having carefully considered Coastal’s arguments to the contrary, we again conclude that the readjustment of Coastal’s leases was timely as the Interior duly notified Coastal of its intent to readjust the lease prior to the anniversary dates of the lease.
II. Lawfulness of the Readjusted Terms and Conditions
The BLM readjusted the terms and conditions of Coastal’s two leases in several particulars, including the royalty rate increase to 8% of the value of the coal mined, the deletion of the credit against royalty payments for rental payments, the substitution of monthly royalty payments for quarterly payments, increased bond requirements, and change of the readjustment intervals from 20 to 10 years. Coastal puts in issue the lawfulness of all these readjustments, with particular emphasis, of course, on the royalty increase.
Our starting point in this discussion is MLLA (1920), which was the statutory authority under which the present leases were issued by the Secretary. Section 7 of that Act provided as follows:
Leases shall be for an indeterminate period ... upon the further condition that at the end of each 20-year period succeeding the date of the lease such readjustment of terms and conditions may be made as the Secretary of the Interior may determine, unless otherwise provided by law at the expiration of such periods.
Both of Coastal’s leases incorporated the language of this statute.
As we stated in FMC Wyoming Corp., supra, section 7 of the Act, inter alia, clearly advises the lessee coal company that at the end of 20 years the Secretary is empowered to readjust the terms and conditions of the coal lease as he, or she, may determine. This is, of course, a very broad authority which Congress saw fit to grant to the Secretary, an authority which is only subject to the proviso “unless otherwise provided by law at the expiration of such [twenty-year] periods.” So, at the end of 20 years, the Secretary may readjust as he, or she, determines, unless the statutory law in effect on the 20-year anniversary date provides, for example, that a particular term be included in the lease. As we found in FMC Wyoming Corp., supra, the passage of FCLAA (1976) established such statutory law, setting forth the minimum provisions for federal coal leases. Such being the case, the Secretary in readjusting the terms and conditions of Coastal’s leases was required to act in conformity with FCLAA (1976).
Although, as indicated, the Secretary readjusted several significant terms and conditions of the SL and U leases on their 20-year anniversary dates, primary focus is on the increased royalty rate. On the anniversary date of each lease Coastal was paying, and for the prior 20 years had been paying, a royalty rate of fifteen cents per ton of coal mined. Although MLLA (1920) empowered the Secretary to originally determine and fix the royalty rate, it also provided that such rate should not be less than five cents per ton. FCLAA (1976), in effect, reaffirmed the authority of the Secretary to determine and fix the royalty rates of coal leases, but also provided that such rate must be “not less than twelve and one-half per centum of the value of the coal ..., except that the Secretary may determine a lesser amount in the case of coal recovered by underground mining operations.” Acting pursuant to this statute, the Department published a regulation which reads as follows:
A lease shall require payment of a royalty rate of not less than 8 per centum of the value of the coal removed from an underground mine, except that an authorized office may determine a lesser amount, but in no case less than 5 percent if conditions warrant.
43 C.F.R. § 3473.3-2(a)(3) (1979).
The BLM interpreted the foregoing regulation as meaning that on the anniversary dates of Coastal’s underground coal leases the Minerals Management Service had no authority to recommend a royalty rate less than 8% of the value of the coal mined, and in its decision said so in just so many words. BLM went on to add that if Coastal felt the 8% rate to be excessive, its only avenue of relief was to file an application for temporary royalty rate reduction under section 39 of MLLA. See 30 U.S.C. § 209 (1982).
The IBLA, upholding, on appeal, the ruling of the BLM that under the applicable regulations Coastal’s royalty rate must be initially readjusted to 8% of the-value of the removed coal, rather than a lesser figure, quoted the following language with approval:
Departmental regulation 43 CFR 3473.-3-2 provides two ways of granting underground coal lessees relief from the statutory I2V2 percent royalty. Subsections (a)(1) and (a)(3) implement 30 U.S.C. § 207(a) (1976) and provide that a rate as low as 5 percent may be determined at lease issuance____ Alternatively, the Department may establish a royalty rate in the lease and provide relief after lease issuance upon application of the lessee under subsection (d), which implements 30 U.S.C. § 209 (1976). Appellant has not persuaded us that it is unreasonable to establish an 8 percent royalty rate in the lease now, since the rate may temporarily be reduced later if conditions warrant. If a lower rate is put into the lease now and economic conditions change favorably during the term of the lease, there will be no opportunity for upward adjustment of the royalty figure until the lease is again ripe for readjustment. The method chosen by BLM thus assures the United States a fairer return over the life of the lease, provides appellant some relief from the statutory Í2V2 percent rate, yet affords appellant an opportunity for further royalty relief when it is really needed. We previously have affirmed BLM decisions denying special royalty relief at lease readjustment, requiring lessees to seek such relief under 43 CFR 3473.3-2(d). Lone Star Steel Co., 65 IBLA 147 (1982); Garland Coal and Mining Co., 49 IBLA 400 (1980).
Coastal States Energy Co., 70 IBLA 386, 393 (1983) (quoting Blackhawk Coal Co., 68 IBLA 96, 99 (1982)).
As mentioned at the outset, the district court on review of the decision of IBLA initially denied the Secretary’s motion for summary judgment on Coastal’s third cause of action, which concerned the imposition of the 8% royalty rate on coal recovered in underground mines. Subsequently, after a more complete rule making record was presented to the district court, the district court granted the Secretary’s motion for summary judgment on the third cause of action and upheld the readjusted royalty rate of 8%. In its opinion, the district court carefully analyzed the matter and concluded that initially fixing Coastal’s royalty rate at 8% was proper and noted that there was a procedure whereby Coastal could later seek review and relief if it could justify a lesser rate. See 629 F.Supp. 9 at 29-33 (D.Utah 1985). We are in general accord with the district court’s handling of this matter with one conceivably important exception.
The exception concerns the authority of the Minerals Management Service, in the instant case, to consider on the anniversary date of Coastal’s underground mine leases a royalty rate less than 8% of the value of the coal mined. The regulation in the first instance requires that the royalty rate shall not be less than 8% of the value of the coal mined, but the same regulation in the next breath goes on to state that, notwithstanding the 8% figure, “an authorized officer may determine a lesser amount, but in no case less than 5% if conditions warrant.” BLM, IBLA, and the district court have all held that, notwithstanding the rather clear language of the regulation, the royalty rate on the anniversary date of a coal lease must be readjusted to 8%. Agency interpretation of its own regulations is to be accorded considered judicial deference, but, at the same time, the courts should require agency action to conform to its own rules and regulations.
As applied to the instant case, Coastal suggests that, assuming the applicability of FCLAA (1976), under the regulation any mandatory minimum royalty rate is 5%, not 8%, of the value of the coal mined. We reject that suggestion. However, we agree with Coastal that it is error for the BLM to automatically fix the readjusted royalty rate for all underground coal at 8%. Such completely ignores the ensuing proviso in the same regulation that a lesser amount, but not less than 5%, may be set, “if conditions warrant.”
Subsequent to IBLA’s decision in the instant case, the IBLA recently held that Minerals Management Service, now succeeded by BLM, has the authority to set a royalty rate for underground coal at less than 8% in readjusting an existing coal lease. In Utah Power & Light, 80 IBLA 180 (1984), the BLM “admitted” that the regulations do allow a royalty rate of less than 8% to be placed on a readjusted undermine coal lease “if conditions warrant.” IBLA agreed with BLM and remanded the case there before it to the BLM for further consideration. This particular pronouncement of IBLA is in accord with our reading of the regulations.
As indicated, the readjusted royalty rate was not the only issue raised by Coastal in its petition for review, although it was perhaps the principal one. However, having concluded that FCLAA (1976) has application to the Secretary’s readjustment of the terms and conditions of Coastal’s two leases, it follows that Coastal’s other claims concerning terms mandated by FCLAA were also properly rejected. In sum, FCLAA (1976) applies to pre-FCLAA leases on their post-FCLAA anniversary date under which the leases were issued. See FMC Wyoming Corp., supra. Such was the intent behind FCLAA (1976) and such intent is in accord with MLLA (1920). Other action by the Secretary in readjusting Coastal’s leases not mandated by FCLAA (1976) is, in our view, a reasonable exercise of the Secretary’s broad authority to readjust.
Judgment affirmed, except for that part of the judgment which upheld the IBLA’s decision that on the anniversary dates of Coastal’s two leases the royalty rate had to be set at 8% of the value of the coal mined, and that a lesser figure could not even be considered. That part of the judgment only is reversed, and that particular matter only shall, by order of the district court, be remanded to IBLA with direction that further proceedings be in accord with this opinion.
. Coastal's third claim raised several issues challenging the validity of the Department’s 8% royalty readjustment regulation.
. Coastal’s SL lease reserved in the lessor "[t]he right to readjust and fix royalties payable hereunder and other terms and conditions at the end of 20 years from the date hereof and thereafter at the end of each succeeding 20 year period during the continuance of this lease unless otherwise provided by law at the time of expiration of any such period." The U lease contained similar language modifying only the "right to readjust” to read "the right reasonably to readjust."
. The original royalty rate for the SL lease was 15$ per ton. However during the first 20 years, this rate was reduced to 10$ per ton as a result of economic hardship.
. Coastal received a standard notice-informing Coastal that its leases would be readjusted to the minimum royalty rate prescribed in Interior's regulations. The notice also stated that the readjusted terms would be sent within two years of the date of the notice.
. Coastal also contends that the Interior’s own regulations require a final readjustment prior to the anniversary date. We do not agree. A fair reading of 43 C.F.R. § 3451.1 indicates only notice is required before the readjustment date. This reading comports with the Secretary’s interpretation of the regulation. See Lonestar Steel Co., 65 IBLA 147 (1982). An agency’s interpretation of its own regulation is of controlling weight unless plainly erroneous or inconsistent with the regulation. U.S. v. Larionoff, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977).
Nor do we find the regulations governing the timing of readjustments to be arbitrary or capricious. As found by the district court, the challenged regulations were published by the Secretary and comments were received. However not one comment suggested the readjustment must be final prior to the readjustment date. Coastal States Energy Co. v. Watt, 629 F.Supp. 9, 17-19 (D.Utah 1985). Further the Secretary justified its requirement of notice as assuring "timely and competent administration of leases by the self-imposition of the sanction of waiver’’ thus "guarantying] accountability.” 44 Fed. Reg. 42601-02 (1970). The scope of review under the arbitrary and capricious standard is narrow and this court may not substitute its judgment for that of the agency. Motor Vehicle Manufacturer’s Ass’n. v. State Farm Mutual Automobile Insurance, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). In short we find no basis for Coastal’s contention.
. We do not interpret the language in MLLA (1920), which was incorporated verbatim in the two leases here involved, as only meaning that the Secretary on an anniversary date may readjust unless the law in effect at the time of readjustment has taken that right away. It no doubt covers that possibility. But in our view it also permits Congress to allow the Secretary to continue to have the right to readjust, but at the same time circumscribe that right by enacting, for example, a revised minimum royalty rate. The power to do the greater includes the power to do the lesser.
. Section 39 allows the Secretary to reduce or waive a royalty rate whenever he or she judges it necessary in order to promote development or allow the lessee to successfully operate. This power has existed since 1946 and was not altered by FCLAA (1976). See 60 Stat. 957 (1946); 30 U.S.C. § 209 (1982).
. In other decisions, however, the IBLA has reaffirmed the position taken in Coastal. See, e.g., Kanawha & Hocking Coal & Coke Co., 93 IBLA 179 (1986); Consolidation Coal Co., Chevron Coal Development Co., 86 IBLA 60 (1985).
. FCLAA did not specifically address the following terms which Coastal contends are unreasonable: the increased bonding requirement; the change from monthly to quarterly rental payments and, the deletion of a right to credit rental payments against royalty payments. As noted in Rosebud, under MLLA (1920) and the lease language, the Secretary possesses a "very broad power to make changes considered to be in accordance with the proper administration of the lands.” Rosebud Coal Sales Co., Inc. v. Andrus, 667 F.2d 949, 951 (10th Cir.1982). Coastal contends this power is limited by its lease language to "reasonable” changes. As discussed, under the MLLA (1920) and the leases themselves, the Secretary’s power is limited where the terms are "provided by law." As to those terms not so provided, Coastal has merely asserted that they are unreasonable without providing any basis for its claim. We do not agree and hence affirm the readjustment of these leases.
. We do not reach the issue of whether failure to notify the attorney general of the readjustment as required by 30 U.S.C. § 184(/ )(2) (1982) rendered the readjusted lease unlawful. We agree with the district court that the issue was waived as Coastal did not present it in the administrative proceedings below. In spite of Coastal’s claim that the action violated the specific language of the statute, we find no exceptional circumstances justifying judicial review of this issue. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941); see also, Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 157, 80 S.Ct. 1392, 1403, 4 L.Ed.2d 1623 (1960); U.S. v. L.A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952).
Question: Did the interpretation of executive order or administrative regulation by the court favor the appellant? This does include whether or not an executive order was lawful.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray CROWDER, Defendant-Appellant.
No. 15584.
United States Court of Appeals Sixth Circuit.
Sept. 30, 1965.
Edwin C. Price, Jr. (Court appointed), Cincinnati, Ohio, for appellant.
George I. Cline, U. S. Atty., Lexington, Ky. (James F. Cook, Asst. U. S. Atty., Lexington, Ky., on the brief), for appel-lee.
Before PHILLIPS and EDWARDS, Circuit Judges, and BOYD, District Judge.
Marion S. Boyd, Chief Judge, United States District Court for the Western District of Tennessee, sitting by designation.
HARRY PHILLIPS, Circuit Judge.
Defendant-appellant, Kenneth Ray Crowder, along with Glennis Ronald Tucker and Albert Ray Green, was indicted for robbery of the Acme Federal Savings and Loan Association of Coving-ton, Kentucky, herein called Acme. Tucker and Green entered pleas of guilty. Appellant plead not guilty and was tried and convicted by a jury. His sentence was fixed at fifteen years.
This appeal presents two principal questions: (1) The sufficiency of the evidence-to sustain the verdict; and (2) the refusal of the district court to grant a motion for a new trial on grounds of newly discovered evidence.
(1) The Sufficiency of the Evidence
Appellant relied upon an alibi as his principal defense, contending that he was asleep at home at the time of the robbery. He was supported in this contention by his wife and by the testimony of Tucker and Green.
The uncontradicted evidence established that appellant rented an apartment at the “Ida Spence Homes” in Covington; Tucker stayed at appellant’s apartment part of the time; on the night of February 28, 1963, Tucker and appellant went to Cincinnati, picked up Green and did a considerable amount of drinking during the rest of the night; these three defendants were involved in an automobile accident about 10:05 a. m., March 1, 1963; one of the vehicles involved in the accident was a white Buick; the accident took place about a quarter of a block from Acme; on the same day at about two or three minutes after 12:00 noon, Acme was robbed; two men definitely identified as Tucker and Green entered Acme and committed the robbery; approximately forty-five minutes later a white 1955 Buick which was identified as the get-away car was found parked near the Ida Spence Homes; shortly afterwards it was learned that the occupants of the car had entered the apartment of appellant; the police then went to this apartment and found the three men upstairs lying across beds, fully clothed, with their eyes closed, asleep or pretending to be asleep ; and a search produced the major part of the money and the billfolds which were taken from victims in Acme at the time of the hold-up.
Tucker and Green testified on behalf of the defendant to the effect that the three had returned to Crowder’s apartment after the 10:05 a. m. accident; that Crowder went to sleep; that Green then decided to go home and asked Tucker to drive him; that Green and Tucker then left the apartment but on the way they stopped in the vicinity of Acme and had another drink; while there the subject of bank robbery came up and the decision was made to rob Acme, primarily because they had a wreck in the area and. it “seemed the logical place to do it;” that they bought caps and sunglasses for a disguise; that they had purchased the pistol used in the robbery about a week and a half before; that there was no advance planning; that they were the only two parties involved; that after the robbery they returned to appellant’s apartment because it was closer than Green’s house; that the caps, sunglasses and pistol were thrown away behind the Ida Spence Homes; that the proceeds of the robbery were divided between the two and that appellant did not receive any of the stolen money; that Tucker placed part of his share of the money under the mattress of a baby bed and the rest in a pocket of a jacket belonging to appellant which Tucker sometimes wore; and that appellant was not involved in any way in the robbery.
Appellant testifed that he returned home after the accident, went upstairs and went to sleep and did not leave until taken by the police. He stated that the only time that he was awake the other two were in the apartment and he did not ask them what they were doing. His wife testified that Crowder arrived home sometime between five or six and nine or ten o’clock and was at home at the time of the robbery.
The government’s evidence showed-that the defendants ate, bought gasoline and had an automobile accident in the Acme area; and that Tucker and Green entered Acme, and Green held four persons as hostages in the back room. Each of the four hostages testified that Green informed them that the get-away car would be outside at 12:08.
Billfolds were taken from three of these hostages which were found later at appellant’s apartment. A deaf mute who entered Acme immediately after the robbery and gave a description of the car indicated that a third man was in the car at the time the other two left the scene of the robbery. -A construction worker saw a white 1955 Buick outside Acme and testified that a man was sitting under the wheel although he could not identify him. A tenant living next door to appellant testified that appellant and Tucker, with a third person, passed by her window about one o’clock. The stolen money and the three wallets were found in appellant’s apartment. The money was in three locations, with the larger sum being found on Green, the one who handled the gun, and two approximately equal amounts were found under the mattress of the baby bed and in appellant’s jacket pocket, which was hanging in the closet.
The conflicts in the testimony presented questions of credibility- to be determined by the jury, whose province it is to weigh the evidence, resolve conflicts therein, and draw reasonable inferences therefrom. “The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680. Applying this rule, we find that there is sufficient evidence to support the verdict.
(2) Motion for a New Trial on Grounds of Newly Discovered Evidence
Appellant filed notice of appeal from his conviction on July 8, 1963. On December 1, 1964, this court remanded the case to the district court for the sole purpose of considering a motion for a new trial based upon newly discovered evidence. This motion was grounded upon an affidavit signed by Glennis Roland Tucker stating that Crowder did not participate in the crime but that one Dwight Courtney was the third participant.
The district court on February 18, 1965, denied the motion for a new trial without an evidentiary hearing, saying that:
“The record in this case has been re-examined in the light of the defendant’s motion. The so-called new evidence is nothing more than the statement of a co-defendant who was present at the time of trial and who testified in behalf of the defendant, Crowder. Glennis Ronald Tucker, who signs the affidavit on which the motion for a new trial is based and who himself has plead guilty to the offense charged, testified that on the day of the robbery he was in company with the defendant, Kenneth Ray Crowder, and had been in Crow-der’s home after a night of drinking with his other co-defendant, Green. He stated that he left Crowder’s house at approximately 11:15 or 11:30, committed the robbery with his co-defendant, Green, and returned to Crowder’s house where the three defendants and the money were found by the officers. He testified that there was only one other person with him in the commission of the crime, that is, his co-defendant, Green. Now, according to his affidavit, there were three persons involved in the robbery, one of whom he says was Dwight Courtney. Notwithstanding these conflicting statements, it is established, by Tucker that he and his associates in the bank robbery were at the home of the defendant, Crowder, immediately before and immediately after the robbery. The jury saw these witnesses testify and heard the witnesses for the United States and it is brought out in detail all the surrounding facts and circumstances.
“It is my judgment that the verdict should not be set aside on the ground of newly discovered evidence unless the evidence is of such a character that there is a strong probability of a different verdict in the event of a new trial * * *
******
“Tucker testified in the case on June 27, 1963 but he did not make the affidavit on which the motion is based-until July 30,1964.”
Appellant contends that the denial of the new trial motion was an abuse of discretion on the part of the district court or alternatively that the order should be vacated and remanded for an evidentiary hearing.
The granting or refusal of a motion for a new trial upon the ground of newly discovered evidence rests in the sound discretion of the trial court and a new trial will not be granted unless such evidence would probably bring about a different result. In the absence of a clear showing of abuse of discretion in determining the probable effect of the newly discovered evidence in changing the result of the trial, the action of the district judge in overruling the motion for a new trial will not be disturbed on appeal. United States v. Lewis, 338 F.2d 137 (C.A.6), cert. denied, 380 U.S. 978, 85 S.Ct. 1342, 14 L.Ed.2d 272, and cases therein cited.
In this case the district judge heard Tucker’s testimony before the jury to the effect that only two persons were involved in the robbery and that appellant did not participate. The jury refused to believe this testimony. This same witness now has undertaken by affidavit to change his story and say that three persons were involved in the robbery, but that appellant was not the third person. We find no abuse of discretion on the part of the district judge in denying the motion for a new trial.
Appellant alternatively says that he should be granted an evidentiary hearing on his motion for a new trial.
In Lyles v. United States, 272 F.2d 910, 912 (C.A.5) the court said:
“Ordinarily the district court may in its discretion determine a motion for new trial upon affidavits without more. Ewing v. United States, 1942, 77 U.S.App.D.C. 14, 135 F.2d 633, 638. There are, however, exceptional cases in which an oral hearing should be granted. * * * ”
In Gordon v. United States, 178 F.2d 896 (C.A.6), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353, the new trial motion was denied after being considered only on affidavits.
Appellant contends that Dwight Courtney, the person identified by Tucker’s affidavit as having been the third party involved in the robbery, is now being held in the Federal Prison at Chillicothe, Ohio, and that the case should be remanded to the district court for a hearing on the motion for a new trial in order that Courtney may be introduced as a witness. This too presents a matter within the discretion of the district judge.
Under -the facts and circumstances of this case we find no abuse of discretion on the part of the district court in denying without an evidentiary liearing the motion for a new trial.
The judgment of the district court is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_respond1_3_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. ALL, RIGHT, TITLE AND INTEREST IN REAL PROPERTY AND APPURTENANCES THERETO KNOWN AS 785 ST. NICHOLAS AVE. AND 789 ST. NICHOLAS AVE. and a Leasehold Interest Therein Known as the Franchise Restaurant and 1208 Clay Ave. Bronx, New York; All Bank Accounts in the Names of or Controlled in Whole or in Part by Norma and/or Lloyd Beckford at Dollar Dry Dock Bank, 101 E. 170th St. Bronx, NY, Including Account Numbers 34010316949-0, 340103316947-0, 340103314974 & 34180001716-2 and Bank of Nova Scotia, 1 Liberty Plaza, New York, NY Including Account Number 1483, Defendants-In-Rem-Appellants, and Norma Beckford and Lloyd Beckford, Claimants-Appellants-Cross-Appellees.
Nos. 162, 270, Dockets 92-6077, 92-6079.
United States Court of Appeals, Second Circuit.
Argued Oct. 1, 1992.
Decided Jan. 6, 1993.
Murray Appleman, New York City, for claimants-appellants-cross-appellees and defendants-in-rem-appellants.
Bart G. Van DeWeghe, Asst. U.S. Atty., S.D.N.Y., New York City (Ping C. Moy, Asst. U.S. Atty., and Otto G. Obermaier, U.S. Atty., S.D.N.Y., of counsel), for plaintiff-appellee-cross-appellant.
Before: MESKILL, Chief Judge, OAKES and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal involves real property and bank accounts in New York City that the United States seeks to have forfeited to it because the property allegedly was used to facilitate drug-trafficking or represented the proceeds of such trafficking. In an Ode written 2000 years ago the poet Horace enjoined the Romans to: “Carpe diem” — “Seize today, and trust as little As thou mayst tomorrow’s light.” The Complete Works of Horace 143 (Casper J. Kraemer, Jr. ed., Modern Library 1936). But the poet’s admonition to “use today, forget tomorrow” was not an invitation to lawlessness. From the record before us it appears rather that claimants in this in rem proceeding conducted their activities heedless of the consequences that might follow. In so doing they subjected their property to the government’s awesome forfeiture power to seize it. It remains our task to ensure that the purported forfeiture accords claimants their rights under the law.
Claimants-appellants Norma and Lloyd Beckford, wife and husband, appeal from a judgment entered on January 22, 1992 in the United States District Court for the Southern District of New York (Stanton, J.) that forfeited their right, title, and interest in four New York City buildings upon a finding they had used their property to facilitate drug trafficking in violation of 21 U.S.C. § 881(a)(7) (1988). Two bank accounts in claimants’ names at the Dollar Dry Dock Bank in the same city were found not to be subject to forfeiture under § 881(a)(6) because the district court ruled the government had failed to establish probable cause showing that the accounts contained proceeds traceable to drug transactions. The government cross-appeals from that portion of the judgment dismissing its forfeiture claim against the two bank accounts. We affirm the portion of the judgment and final order of forfeiture dealing with the real property and vacate the portion dealing with the two bank accounts and remand for further proceedings.
BACKGROUND
Real Property
The facts supporting the real property and bank accounts in the civil in rem proceeding need to be stated. The Beckfords owned three adjacent buildings at 785-87-89 St. Nicholas Avenue in Manhattan in which they leased apartments for residential purposes and ground-floor store fronts for commercial purposes. Appellants also owned and operated the Franchise Restaurant on the ground floor at 789 St. Nicholas Avenue and an apartment building at 1208 Clay Avenue in the Bronx. They and their son lived in separate apartments in the Clay Avenue building, the remaining units being let to other residential tenants.
Evidence introduced before the district court demonstrated an astonishing number of drug transactions occurring in, near, and related to these properties. Many directly involved the claimants. Between 1987 and 1990 the New York City Police Department made 66 narcotics-related arrests inside or in front of 789 St. Nicholas Avenue and found drugs on the property on numerous occasions. Twenty-nine of these arrests resulted in convictions. Some of the arrests occurred after marijuana had been purchased by individuals who were in the Franchise Restaurant, often in close proximity to one of the claimants.
Several of the drug-related arrests involved the claimants, their children, or their employees. For example, on August 22, 1987 Norma Beckford was arrested inside the Franchise Restaurant for possession of marijuana; on March 21, 1988 she and her husband were arrested following a sale of marijuana by an employee in the same restaurant to an undercover officer. Searches of the premises subsequent to those arrests revealed a .357 magnum revolver, large amounts of cash, and a quantity of marijuana. The Beckford’s son and daughter were convicted on more than one occasion in 1989 for the criminal sale and possession of marijuana as a result of their activity near 789 St. Nicholas Avenue. As could be anticipated with this amount of lawlessness occurring on the property, violence followed. One drug-related homicide took place at the restaurant in Lloyd Beck-ford’s presence. Another murder victim, one Victor Mora, was found by a police officer a block away from the Franchise Restaurant; before he died, Mora identified the restaurant as the place where he had been shot.
In addition, large numbers of arrests were made inside and in front of 785 and 787 St. Nicholas Avenue. In the two-year period between 1988 and 1990 31 drug-related arrests were made at 785 St. Nicholas Avenue and eight similar arrests were made at 787 St. Nicholas. Further, searches executed pursuant to a search warrant at the claimants’ and their son’s apartments at 1208 Clay Avenue building on December 7, 1990 revealed weapons, drugs, drug paraphernalia, and large amounts of cash.
Based on this and other, more detailed evidence, the district court found the government had established the requisite probable cause to believe the subject real properties were being used to facilitate drug trafficking and were therefore subject to forfeiture pursuant to § 881(a)(7). Despite abundant evidence of drug trafficking, including their own drug-related arrests on the property, the Beckfords insisted they had no direct knowledge that their properties were being used as marijuana distribution locations. They further asserted that they had taken all reasonable precautions to prevent others from trafficking in drugs on their property, for instance, by erecting gates at certain entrances. Upon weighing the proof submitted, the trial court ruled that forfeiture of the properties was warranted.
Bank Accounts
The government also sought to have forfeited two Dollar Dry Dock Bank accounts because it believes the balances in each of them represent drug-trafficking proceeds. The accounts contain about $79,000. Although claimants possessed bank books reflecting ownership of several accounts at that bank, only account numbers 34-01-0316949-9 and 34-01-0316947-3 remain open. These two accounts constitute the res that is the subject of the government's cross-appeal. Prosecutors obtained information about those accounts primarily from bank books seized at 1208 Clay Avenue during the December 7, 1990 search. Bank records for three predecessor accounts had been seized during the search following Norma Beckford’s August 22, 1987 arrest at the restaurant.
The government had originally sought forfeiture of another account at the Bank of Nova Scotia in New York, but later dropped this action. The government additionally calls attention to a separate, very sizable account in the claimants’ names at a Jamaican bank, which Norma Beckford testified contained proceeds from a farm and fishing business her family operates in that country. Since the government has not instituted forfeiture proceedings against this account and provided no evidence linking it to the funds in the Dollar Dry Dock account, it is extraneous evidence, irrelevant to the present proceedings. Hence, we do not consider the Jamaican account.
The government built its civil in rem case against the two Dollar Dry Dock accounts based on substantial deposits made into them and their predecessors. Between June 11, 1985 and July 31, 1987 claimants deposited $56,000 into an account numbered 34-01-0304268-8, which had a $46,-599 balance on July 31, 1987 but became inactive following the seizure of its bank book during Norma Beckford’s August 1987 arrest. Claimants then made an initial deposit into account number 34-01-0316949-9 — one of the subject accounts before us — on December 8, 1987 in the amount of $46,779.36. This deposit appears to represent the closing balance of account 34-01-0304268-8. Between December 8, 1987 and December 6, 1990 $26,-000 of deposits arid withdrawals were made, leaving the subject account with an ending balance of $47,836.19.
■ The second account involves a similar scenario. From January 15, 1987 to June 19, 1987 claimants deposited $30,000 into an account numbered 34-01-0289271-1, which had a $30,226 balance on June 19, 1987. Activity ceased in that account too after police seized the bank book following Norma Beckford’s arrest. The second subject account — 34-01-0316947-3 — was opened on December 8, 1987 with an initial deposit of $30,571.53 that appears to be the successor to account 34-01-0289271-1. Following deposits and withdrawals totaling about $19,000, on December 6, 1990 account 34-01-0316947-3 contained a final balance of $31,045.94. Records from a third bank book police also seized in connection with Norma Beckford’s arrest revealed that claimants had deposited over $19,000 into an account numbered 34-01-0314000-3 between February 1986 and August 1987. What became of those funds remains unexplained.
Besides introducing the various seized bank books into evidence, the government also offered a number of claimants’ tax returns in an effort to show a low level of legitimate income in relation to the high deposits made into the above accounts. Although claimants’ 1985 returns showed a taxable income of only $2,021 — a fact the government strongly emphasizes — the 1985 returns also reflected $25,692 in gross receipts from the restaurant, for a net profit of $13,257, and a total of $28,214 in rental income. The latter income was offset by deductions attributed to losses in the operation of the rental properties. In 1986 the Beckfords reported a taxable income of $17,229 resulting from gross receipts of $28,527, with a net profit of $14,226 from the restaurant, and total rental income of $41,904, again offset by substantial deductions. The Franchise Restaurant netted claimants $101,522 in gross receipts in 1987 and $51,547 in profit, and their joint return showed a taxable income of $69,657. The government stressed that growth in the restaurant’s income corresponded with the August 22, 1987 seizure of 798 bags of marijuana in its kitchen.
In response — and to emphasize the legitimacy of their income — claimants introduced their 1988 tax return demonstrating gross receipts of $160,545 from the Franchise Restaurant and a taxable income of $75,643, and also produced their 1989 tax returns reflecting gross receipts of $55,481 from the restaurant and a taxable income of $45,139. When questioned at trial, the Beckfords stated that the bank accounts contained proceeds from their legitimate business and rental properties and that their tax returns revealed all their income. Although the government contended that the income reported from the Franchise Restaurant might have constituted drug sale proceeds rather than restaurant income, little evidence was introduced to support this theory.
Based on this proof, the district court found the government had not sufficiently established that the money in the bank accounts could be traced to drug trafficking and dismissed the government’s forfeiture claims under § 881(a)(6). On cross-appeal, the government challenges the district court’s failure to find probable cause with respect to these accounts. It also asserts the trial court made a ruling during the early course of the trial finding probable cause, which shifted the burden to the claimants to demonstrate the legitimacy of the money in the Dollar Dry Dock accounts, and generated an issue that the trial court failed to consider or rule upon.
DISCUSSION
I Forfeiture
A. Origins
Before discussing the forfeiture of the real property and bank accounts in this case, we examine briefly the origins of the concept of forfeiting property to the sovereign. Liability of a “thing,” an inanimate object or an animal that did a wrongful act, springs from ancient law. “When an ox gores a man or woman to death, the ox must be stoned, and its flesh shall not be eaten. The owner of the ox, however, shall go unpunished.” Exodus 21:28.
Roman law followed this principle, except that where an animal caused damage its owner was subject to compensate the injured person or noxally to surrender the animal to the injured party. “Noxa” was used in the civil law to designate the offense and punishment for such damages by a slave or an animal. The civil law did not apply this rule to inanimate objects as did the common law, which held that when the object that did the act—a gun, for example—was tainted and must be surrendered. See Barry Nicholas, An Introduction to Roman Law 224 (1962). Justice Holmes in his classic book on the general theory of law, The Common Law, posits that vengeance on the immediate offender (the inanimate thing) was the object of early Greek and Roman law, not indemnity from the owner. Oliver W. Holmes, Jr., The Common Law 34 (1938).
In examining the English common law prior to the Revolution, we find the object that does the injury is called a “deodand,” which Blackstone defines as the accursed thing. He explains that this notion had its roots in religion, as expiation for sudden death, so that, for instance, if a cart runs over a person, the cart is forfeited as a deodand. If one man kills another with a sword, the sword is forfeited as an accursed thing. As a result, in Blackstone’s time, in all indictments for homicide the instrument that caused death and its value are found by the grand jury so that the king may claim the deodand. Added to this religious origin as a reason for forfeiture to the sovereign of the deodand is the view that the misfortune brought about by the object was due in part to the negligence of the owner and that a forfeiture of his property properly punishes him. 1 William Blackstone, Commentaries *290-91. The true reason for permitting forfeiture, according to Blackstone, was that it is part of the price a citizen must pay for breaking the social contract by violating the law. Id. at *289.
As a consequence, it appears to have been the law from the very earliest times that an inanimate object that is the instrumentality by which the law is violated is forfeited as an act of vengeance against the object. Its owner suffers the loss of the property on a negligence theory or as part of the price an owner must pay for permitting personal or real property to be an occasion for violating the law. Such is now the rule in American jurisprudence. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682-83, 94 S.Ct. 2080, 2091-92, 40 L.Ed.2d 452 (1974).
B. Statutory Civil Forfeiture
With this historical background, we turn to the statutory law that governs forfeiture today. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-896 (1988), provides for civil forfeitures in Part E—“Administrative and Enforcement Provisions,” §§ 871-886. The drug-related asset forfeiture scheme embodied in § 881 establishes a two-step process for the forfeiture of property to the sovereign United States. Under § 881(a)(7) that process applies to forfeiture of:
[a]ll real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shall be forfeited ... by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
Forfeiture may be had under § 881(a)(6) of “[a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance [as well as] all proceeds traceable to such an exchange.” (emphasis added).
The government has three options when it institutes a civil forfeiture in rem proceeding: (1) file a complaint pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims, which triggers the issuance of a summons and warrant by a court clerk without requiring a certification of exigent circumstances; (2) request the issuance of a seizure warrant in the manner provided for in Fed.R.Crim.P. 41 that requires a finding of probable cause ex parte by a judicial officer; or (3) “when the Attorney General has probable cause to believe the property is subject to civil forfeiture,” seize it following applicable customs law as set forth in § 881(d). See United States v. 4492 S. Livonia Road, 889 F.2d 1258, 1262-67 (2d Cir.1989).
The third option was followed in the case at hand. Under § 881(d) those procedures used under the United States Customs Laws, as spelled out at 19 U.S.C. § 1615 (1988), are incorporated in the forfeiture proceedings. Section 1615 describes the burden of proof and requires that the agency seeking forfeiture must first demonstrate probable cause supporting the action. The initial step in the forfeiture process under §§ 881(a)(6) and (7) accordingly requires the government establish probable cause that connects the property with drug trafficking. There need not be a substantial connection between the drug activities and the property in question, but only a nexus between them. See United States v. 38 Whalers Cove Drive, 954 F.2d 29, 33 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992); United States v. Whites Hill Road, 916 F.2d 808, 811-12 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991); United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir.1986). When forfeiture is of a bank account, the government must persuade the factfinder that there is probable cause to believe the funds represent proceeds traceable to a drug transaction. E.g., United States v. One 1987 Mercedes 560 SEL, 919 F.2d 327, 331-32 (5th Cir.1990).
To establish probable cause neither the real property nor bank proceeds need to be linked to any one particular transaction, Banco Cafetero, 797 F.2d at 1160, but the government must establish “reasonable grounds” — that is to say, rising above “mere suspicion” — that the property is subject to forfeiture. Id.; 4492 S. Livonia Road, 889 F.2d at 1267. The failure to account for large amounts of cash may be considered a factor in establishing probable cause that money represents the proceeds of drug transactions. See Whites Hill Road, 916 F.2d at 813; United States v. $2,500 in U.S. Currency, 689 F.2d 10, 16 (2d Cir.1982), cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984).
Once the government has demonstrated probable cause, the second step in the forfeiture proceeding shifts the burden of proof to the claimant to demonstrate by a preponderance of the evidence that the factual predicates necessary to show probable cause have not been met or to show claimants lack of knowledge or consent to the drug-related activities. See 19 U.S.C. § 1615; Whites Hill Road, 916 F.2d at 812; United States v. 15 Black Ledge Drive, 897 F.2d 97, 102 (2d Cir.1990); 4492 S. Livonia Road, 889 F.2d at 1267. In the case of a bank account, the claimant bears the burden of proving that the account does not contain proceeds traceable to drug transactions, but rather represents legitimate income. See Banco Cafetero, 797 F.2d at 1161. Once probable cause has been shown, the ultimate burden of proof on whether factual predicates have been met or whether there is a lack of knowledge or consent is shouldered by the claimant. We turn now to apply this analysis to the district court’s decision respecting the Beckford’s real property and their Dollar Dry Dock accounts.
II Two-Step Process Applied to Instant Case
A. Real Property
We need not tarry long in explaining that the district court properly forfeited to the United States the real properties at 785-87-89 St. Nicholas Avenue and 1208 Clay Avenue. Due to the extraordinary volume of drug transactions occurring on, nearby, or directly related to the premises, the trial court correctly found probable cause existed to demonstrate that the properties had been used to facilitate drug trafficking. Further, it did not err in discrediting claimants’ improbable testimony that they had no knowledge of drug-trafficking on their properties and had not consented to it, particularly given their own arrests on the site and their presence during arrests for various drug transactions that took place inside the Franchise Restaurant.
Claimants essentially contend that there was insufficient evidence to support the probable cause finding and that any drug trafficking on their premises was beyond their power to control because law-enforcement agencies had abandoned the drug-ridden neighborhood where their property was located, thereby giving drug-traffickers free reign there. We are unable to accept either argument. First, less evidence than was produced in the instant case has sufficed to establish the probable cause required for forfeiture of property. See, e.g., 15 Black Ledge Drive, 897 F.2d at 101; 38 Whalers Cove Drive, 954 F.2d at 32-34 (two cocaine sales totalling $250 sufficient to demonstrate probable cause for forfeiture of $68,000 interest in condominium); United States v. One 1986 Mercedes Benz, 846 F.2d 2, 5 (2d Cir.1988) (noting that transportation of minute quantity of drugs may suffice to merit forfeiture of vehicle).
Second, regardless of the drug-ridden culture that flourished in their neighborhood, claimants have failed to prove by a preponderance of the evidence that they took all the precautions reasonably within their power to prevent drug sales from occurring on their property. Once a claimant acquires knowledge that his or her property is being used for drug-related purposes, that individual must take reasonable steps to prevent this illicit use of the premises in order to show a lack of consent to such use. See United States v. 141st Street Corp., 911 F.2d 870, 879 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991); United States v. 418 57th St., 922 F.2d 129, 132 (2d Cir.1990). Claimants here made no such showing.
Moreover, claimants were not ignorant of the drug sales on their property. Nothing in the record suggests their involvement in or presence near drug sales had diminished or that they took reasonable steps to prevent others from using their property to peddle narcotics. That similar activity may well have pervaded the neighborhood does not excuse them. The legal standard we employ implicitly takes account of the hurdles property owners may face in drug-infested neighborhoods by requiring only that property owners take reasonable steps under the circumstances to prevent their property from facilitating drug transactions. See id. Thus, the district court properly forfeited claimants' real property to the United States.
B. Bank Accounts
The trial court’s decision with respect to the bank accounts is more problematic. The record is not clear as to which of the two stages of a forfeiture proceeding it had reached. As the trial began on December 17, 1991 the trial judge announced, “Based on the facts stipulated [ ] and on the materials submitted with the plaintiffs motion for summary judgment, I have determined that the probable cause requirement has been met by the govern-ment_ That shifts the burden to [claimants] .... ” As a result of this ruling, claimants proceeded to present their case. Although the district court stated its finding “considered only those activities taking place within the building,” it had not limited its probable cause finding to claimants’ real property and, more particularly, did not state that its probable cause finding excluded the bank accounts. The government’s attorney declared at oral argument on appeal that he would have presented further proof that would have established probable cause with respect to the bank accounts had he not believed that a finding of probable cause had already been made at the commencement of the trial.
When the two-day trial ended on December 18, the trial court stated, “I find that the government has not established by any sufficient showing the fact or the inference that the money in the bank accounts was traceable to the exchanges of controlled substances in violation of the relevant chapter, and forfeiture of those sums will not be ordered.” It is at least debatable whether this finding was contrary to the finding it made the day before. Again, the trial court failed to state whether the first or probable cause step was not established by the government’s proof or whether the trial court was persuaded that claimant had carried its burden of proof at the second step of the proceeding.
The government urges us to make a probable cause finding based on a comparison between the income reported on claimants’ 1985-86 tax returns and their bank deposits in the context of the extensive drug-trafficking that occurred on claimants’ property. We decline that invitation and believe instead that this part of the case must be remanded. A factual determination of this sort is more properly decided by the district court in the first instance. Once the government has had the opportunity to present its proof more fully — and assuming it succeeds in demonstrating probable cause — the claimants must of course then be permitted to present evidence to prove that the source of the funds in the two subject bank accounts came from independent, non-drug-related sources. See One 1987 Mercedes 560 SEL, 919 F.2d at 331.
We emphasize that on remand circumstantial evidence may form the basis of a probable cause finding in forfeiture proceedings and that the funds need not be linked to specific drug transactions in order for the government to meet the probable cause standard. See Banco Cafetero, 797 F.2d at 1160. Particularly in cases involving bank accounts, money or other fungible assets, the only proof demonstrating probable cause is likely to be circumstantial, revealing unexplained wealth in conjunction with evidence of drug trafficking. See, e.g., Whites Hill Road, 916 F.2d at 813 (probable cause established where claimant convicted of selling heroin possessed large sums of unaccounted-for cash and purchased properties in cash); $2,500 in U.S. Currency, 689 F.2d at 16 (probable cause to forfeit cash established where no apparent explanation existed for large amount of cash on hand by claimant convicted on drug charges); cf. One 1987 Mercedes 560 SEL, 919 F.2d at 332 (claimant failed to meet burden of showing legitimacy where no explanation was given for purchase of $75,-000 worth of assets during eight-month period other than his testimony that proceeds represented fruits of legitimate construction work and where claimant introduced no work orders, accounts ledgers or checks deposited supporting his claim).
Most important, while probable cause determinations under § 881 are made by the trial court’s exercise of its judgment in light of all the circumstances, see One 1987 Mercedes 560 SEL, 919 F.2d at 331, it nonetheless remains the law that the connection between an individual’s private assets and drug transactions is not one to be lightly made; the connection must be supported by proof amounting to more than “mere suspicion.” See Banco Cafetero, 797 F.2d at 1160.
CONCLUSION
Due to the seemingly inconsistent probable cause findings in the present record, remand is appropriate. There is a good likelihood additional evidence with respect to claimants’ bank accounts will enhance whatever findings the district court eventually makes.
Accordingly, insofar as the judgment of the district court directed a forfeiture to the United States of claimants’ real property, it is affirmed. Insofar as the district court’s judgment found a lack of probable cause with respect to claimants’ bank accounts, it is reversed and remanded for further proceedings consistent with this opinion.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer:
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songer_alj
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D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court support the decision of an administrative law judge? Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CEFALU v. UNITED STATES.
Circuit Court of Appeals, Tenth Circuit.
January 24, 1930.
No. 119.
Robert D. Charlton, of Denver, Colo. (Lewis DeR. Mowry, of Denver, Colo., on. the brief), for appellant.
Ralph L. Carr, U. S. Atty., of Denver, Colo. (Charles E. Works, Asst. U. S. Atty., of Denver, Colo., on the brief), for the United States.
Before LEWIS, COTTERAL, and Mc-DERMOTT, Circuit Judges.
COTTERAL, Circuit Judge.
An information was filed against appellant, his wife, and Frank Mazza, charging them with five violations of the National Prohibition Act (27 USCA),' at Denver, Colo., in 1928. Mazza was acquitted. Mrs. Cefalu was convicted on all counts- Appellant was acquitted on counts 2 and 3 charging sales, and convicted on count 1 for possession of whisky on August 15, count 4 for a sale of whisky on August 8, and count 5 for maintaining a nuisance on September 11. He assigns error in the denial of a motion to direct a verdiet for insufficiency of the evidence and in giving and refusing instructions to the jury.
The wife of appellant testified that she and Mazza were engaged in the sale of whisky, that they hid their supplies in the country, and did not make the sales at the Cefalu home in Denver. Federal Prohibition Agents testified that they bought whisky from her there on several occasions, but that appellant was present only on August 8; that on that day when she had gone to another room, appellant came from the same room wearing a bath robe, in his bare feet, sat on a piano bench, talked with the officers, and was present when she returned with the whisky and made the sale of it to them. Sales were testified to'by them at the home on July 25 and August 4, and by their account when they were there on August 15, they saw Mrs. Cefalu go from the front part of the house to the kitchen carrying two bottles, break one of them on the sink, and the other contained a small quantity of whisky. The testimony of the appellant is he had nothing to do with the transactions, he did not know of them, or know there was whisky in the house, his wife rented the house, he supported her, paying her bills, and he was absent most of the time engaged in selling macaroni and olive oil to Italians, chiefly in Nebraska. Mrs. Cefalu corroborated his testimony.
This summary, incomplete as it is in many details, suffices for the purpose of determining whether' appellant was entitled to a directed verdict in his favor on the fourth count, charging a sale on August 8th. It seems to us, as it did to the trial judge, it was a question of fact whether appellant was a party to that sale, and it is inconceivable he could have been present as he was at his home and conducted himself as he did there under the circumstances when the sale was made, without having clear knowledge the illicit business was being carried on there and without having a responsible part in it. Otherwise, the transaction called for some expression of surprise or protest from him, but he was acquiescent. There was such apparent understanding and approval of it as to connect him with it, in the way of aiding and counseling his wife, and this was the theory on which the case was submitted to the jury. Section 550, Title 18 U. S. Code (18 USCA § 550). The jury so found, and we think it cannot he said the finding was without support. The cases cited to show the mere presence at-the scene of an offense under different circumstances is not sufficient for conviction, present a different question. The ruling on the motion to direct a verdict on count 4 was therefore correct.
As to count 1, charging possession, on August 15th, and count 5, charging a nuisance, on September 11th, there was no1 sufficient evidence to connect appellant with the transactions and warrant submission of them to the jury as to him, and the motion to direct a verdict on those two counts should have been sustained.
The complaint leveled at the charge to the jury is without force, as there was no exception to it. Examining it, however, we find it fairly submitted the issues to the jury and it discloses no prejudicial error. A request tendered and refused was to the effect that the proof, in order to convict, must show appellant actively and knowingly participated in the liquor transactions. This we hold was a requirement that was too broad.in terms. Another portion of the same request was that the mere presence of the appellant when the liquor transactions occurred was not sufficient to establish his guilt, but the court so charged the jury.
No other questions are entitled to consideration. The judgment of conviction on count 4 is affirmed. The judgments of conviction on counts 1 and 5 are reversed, and the cause is remanded to the District Court with direction to grant the appellant a new trial on those two counts.
Question: Did the court support the decision of an administrative law judge?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_stid
|
29
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Jack RAINSBERGER, Appellant, v. Ralph LAMB, Sheriff, Clark County, Nevada, Appellee.
No. 18162.
United States Court of Appeals Ninth Circuit.
Jan. 28, 1963.
Samuel S. Lionel, Las Vegas, Nev., for appellant.
John F. Mendoza, Dist. Atty., Charles L. Garner, William S. Barker, Deputy Dist. Attys., Las Vegas, Nev., for appellee.
Before HAMLEY, MAGRUDER and DUNIWAY, Circuit Judges.
MAGRUDER, Circuit Judge.
This is a habeas corpus case. It started as a criminal charge of murder lodged against appellant in the Eighth Judicial District Court in and for the County of Clark, State of Nevada. At the time of the hearing the applicable statute read that “ * * * if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime and give sentence accordingly.” N.R.S. 200.030, subsection 2. Notwithstanding the burden which this law placed upon the district judge, appellant having pleaded guilty to the charge of murder, after the hearing the judge determined that appellant was guilty of murder in the first degree and sentenced him to death in the gas chamber.
The district judge remonstrated with the legislature that no judge should by himself have the responsibility of sentencing a man to death. The legislature obliged him by amending the relevant statute so as to read: “ * * * If any person is convicted of murder on his confession in open court without a jury, or upon a plea of guilty without specification of a degree, the supreme court shall appoint two district judges from judicial districts other than the district in which the confession or plea is-madg^who shall, with the district judge before whom such confession or plea was made, or his successor in office, by examination of witnesses, determine the degree of the crime and give sentence accordingly. Such determination shall' be by unanimous vote of the three district judges.” N.R.S. 200.030, subsection 3.
Having a death sentence staring him in the face, appellant appealed to the Supreme Court of Nevada on a point of evidence. That court reversed the judgment of the district court of Clark County, Nevada, and sent the ease back for a hearing before a court of three judges “to determine the degree of the crime and give sentence accordingly.” ‘ Rainsberger v. Nevada, 76 Nev. 158, 350 P.2d 995, 998 (1960).
When the case was again in the Eighth Judicial District Court for Clark County pursuant to the mandate, appellant insisted that the amended law was an ex post facto law, contrary to his constitutional rights. Without waiting for a determination by the three-judge court, appellant rushed in with a petition for a writ of habeas corpus filed in the district court of Clark County contending that the new statute had repealed the old one, and that whereas three judges were now to determine the degree of his guilt and sentence him accordingly, the single judge is thus relieved from the burden which had previously rested upon him, and hence that the amendment changed to his detriment the position of appellant. See Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882).
The petition was denied by the district court of Clark County, Nevada. On appeal to the Supreme Court of Nevada, this denial was affirmed. Application of Rainsberger, 77 Nev. 399, 365 P.2d 489 (1961). The court pointed out that the writ of habeas corpus was not available under the local procedure to attack the present respondent, namely, the sheriff of Clark County, who lawfully held respondent under a warrant of arrest for a nonbailable offense. If the three-judge court should determine in the future that the crime was murder in the first degree and sentence appellant to death, habeas corpus no doubt would be the appropriate remedy to test the ex post facto nature of the amended statute, as against the warden of the state penitentiary, who then would be holding the accused. See Eureka County Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655 (1912).
Appellant thereafter applied to the United States Supreme Court for a writ of certiorari, which was denied without opinion. Rainsberger v. Leypoldt, Sheriff, 368 U.S. 516, 82 S.Ct. 530, 7 L.Ed.2d 522 (1962), rehearing denied 369 U.S. 832, 82 S.Ct. 849, 7 L.Ed.2d 797 (1962). Appellant then filed in the federal district court below the present writ of habeas corpus, alleging that he had exhausted his state remedies.
We think that the district court properly denied the petition on the ground that appellant had failed to exhaust his remedies under state law as required by 28 U.S.C. § 2254. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), has no application to this case. The Nevada Supreme Court has never passed upon the federal ex post facto question. That court has merely decided that habeas corpus as a matter of local law would not lie under these circumstances. If and when the Supreme Court of Nevada has before it an appeal from the determination of murder in the first degree by a three-judge court, at that time, and not before, the Supreme Court of Nevada will have to pass upon the federal question raised here.
Personally I would be.willing to assume without deciding that appellant has exhausted his remedies under the state law, but see Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177 (1946), after which I would decide the case on the merits, since it seems clear to me that no constitutional rights have been violated. But my two colleagues do not agree to this disposition of this appeal, and not being in disagreement with them I have written the opinion their way.
A judgment will be entered affirming the judgment of the District Court.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_respond1_1_4
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
J. B. BICKFORD and Max E. Rogers, Co-Agents of the Successors-in-Interest to the Assets for the Magic-Vac Corporation, formerly a corporation of Oklahoma, Plaintiffs-Appellants, v. JOHN E. MITCHELL COMPANY, a corporation of Missouri, Defendant-Appellee.
No. 77-1444.
United States Court of Appeals, Tenth Circuit.
Argued Nov. 15, 1978.
Decided March 26, 1979.
Jerry J. Dunlap of Dunlap, Codding & McCarthy, Oklahoma City, Okl., for plaintiffs-appellants.
William Bedard of Storey, Armstrong, Steger & Martin, Dallas, Tex. (Burck Bailey of Fellers, Snider, Blankenship & Bailey, Oklahoma City, Okl., on the brief), for defendant-appellee.
Before HOLLOWAY and DOYLE, Circuit Judges, and STANLEY, Senior District Judge .
Of the District of Kansas, sitting by designation.
STANLEY, Senior District Judge.
This appeal involves the interpretation of patent and royalty rights under a written contract between the plaintiffs-appellants, successors in interest of Magic-Vac Corporation and the defendant-appellee, John E. Mitchell Company.
The plaintiffs alleged that they were entitled to (1) the payment of additional royalties under the contract in the amount of $45,658.23, and (2) the reconveyance of certain patent rights and the Magic-Vac trademark which had been assigned to the Mitchell Company under the contract. The court, sitting without a jury, awarded plaintiffs $8,639.55 in additional royalties; determined that plaintiffs were not entitled to reconveyance of the patent rights, and that the trademark had reverted to plaintiffs on Mitchell’s termination of the contract. The court also denied plaintiffs’ claim for attorney’s fees.
The background facts will be set out in some detail.
F. E. Farley, one of the plaintiffs in this action, was the president and negotiator for Magic-Vac Corporation at the time the contract of sale was entered into. Magic-Vac was then manufacturing central unit vacuuming systems for home and professional use. The company was in some financial difficulty and these difficulties led to the sale of the assets of Magic-Vac to the Mitchell Company which also was engaged in the manufacture of vacuum cleaning units.
By the terms of the contract of sale the Magic-Vac stockholders were to be paid a five percent royalty on “each Magic-Vac cleaner and component parts sold by Mitchell” and “repair and replacement parts”.
At the same time that the corporation was sold, Farley signed on his own behalf another contract with the Mitchell Company. This was a personal employment contract whereby Farley was to receive $500 per month minimum salary plus a one percent commission on all items sold by him. Farley therefore received royalties as a 39 percent stockholder of Magic-Vac plus a one percent commission on sales.
Mitchell Company computed the royalties and Farley’s commission on the same gross sales figure from April 1962 until November 1963. It then became apparent to the Mitchell Company officers that the items on which the royalties were to be paid were not coextensive with the items on which Farley’s commission was based. The discrepancy arose because the Magic-Vac division of the Mitchell Company also manufactured and sold Handy-Wash and Handy-Mart, neither being a product acquired from Magic-Vac. Handy-Wash was a car washing unit installed in service stations. Handy-Mart was a large commercial refrigerator unit used for storage of convenience items such as sandwiches and beverages.
In an effort to avoid burdensome record keeping necessary to keep the two sales totals separate, Mitchell Company simply took 85 percent of the gross sales of the Magic-Vac division and paid the 5 percent royalty based on the resulting amount. This figure was arrived at by examining the ratio of “royalty sales” to Farley’s total sales over a period of several months. It was determined by the Mitchell Company that 85 percent of the total sales was a fair and accurate percentage on which to base the royalty payments.
The Mitchell Company implemented this method and used it from November 1963 until October 1970. From this latter date until November 1972, the date the contract was terminated by Mitchell, the royalty was based on a sales figure which additionally excluded plastic pipe, flexible hoses and attachments such as brushes and crevice tools.
The trial court sustained the use of the 85 percent rule, rejecting plaintiffs’ argument that they were entitled to a royalty on all sales made by the Magic-Vac division. The court based its determination on its interpretation of the 1962 contract — that royalties were to be paid on “Magic-Vac cleaner and component parts” and “repair and replacement parts”, but not on Handy-Wash and Handy-Mart. The trial court further found that the Mitchell Company acted in complete good faith in implementing the 85 percent formula, and that plaintiffs had consented to its use by accepting the benefits of the formula since 1963.
However, the second reduction in the royalty base, the exclusion of flexible hoses, attachment tools, and plastic pipe, was determined to be unfair and these items were reinstated. The reinstatement of these items formed the basis for the $8,639.55 royalty payment awarded plaintiffs and the judgment in their favor has not been appealed by Mitchell.
The deposition of Farley was offered in evidence by the plaintiffs at the trial and was admitted after representation by counsel that he was then physically unable to appear. After judgment was entered and after the findings and conclusions were filed the plaintiffs moved for a new trial or alternatively to re-open the case to permit Farley to testify. Denial of the motion is assigned as error.
Rule 59(a)(2), Fed.R.Civ.P., provides in part that
On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
Motions of this nature are addressed to the sound discretion of the trial court and a denial will be disturbed only when clearly erroneous. Kizziar v. Dollar, 268 F.2d 914 (10th Cir. 1959), cert. denied, 361 U.S. 914, 80 S.Ct. 258, 4 L.Ed.2d 184.
Plaintiffs did not move for a continuance or request leave to present additional evidence by further deposing Farley. In light of the plaintiffs’ failure to utilize these available alternatives, the court was well within its discretion in denying plaintiffs’ motions. See Muhammad Temple of Islam v. City of Shreveport, La., 387 F.Supp. 1129 (W.D.La.1974), aff’d, 517 F.2d 922 (5th Cir. 1975).
The second issue raised is whether the trial court committed reversible error in holding that the two patent applications conveyed to Mitchell were of no value and that Mitchell was therefore not obligated to reconvey these to the plaintiffs. By the terms of the contract two patent applications were assigned to Mitchell — patent application No. 48,663 in the name of Rex S. Hayes, filed October 19, 1960, and patent application No. 120,873 filed June 15, 1961 in the name of Rex S. Hayes. Plaintiffs offered evidence in the form of testimony by Mr. Bickford, a C.P.A. and one of the plaintiffs in this action, that the patents were worth approximately $180,000. This figure was based on the average of two computations made by Mr. Bickford. The first involved computations of the royalties received by plaintiffs over the previous five years which was projected over the remaining life of the patent, amounting to $200,-000. The second figure offered by Mr. Bickford was $160,000 which resulted from the method of valuation used by the IRS. According to Mr. Bickford’s testimony this method involved the use of the life of the patent on which royalties were paid, 1966 through 1972, which was then discounted by 17 percent and projected over the remaining life of the patent.
In an effort to rebut this testimony concerning the value of the patents in question, Mitchell requested that one of its attorneys, Mr. Edmund C. Rogers, who had not yet participated in the trial, be excused as counsel in the case and called as an expert witness. Mr. Rogers’ testimony was allowed over plaintiffs’ objections, and this is also assigned as error.
Rule 601 of the Federal Rules of Evidence provides that every person is competent to be a witness except as otherwise provided in the rules. Attorneys appearing as witnesses on behalf of their clients have been required to withdraw as counsel to avoid ethical improprieties, as was done in this ease. The question of competency, however, is one within the discretion of the trial court and will not be disturbed on appeal unless clearly erroneous. United States v. Brown, 417 F.2d 1068 (5th Cir. 1969) cert. denied, 397 U.S. 998, 90 S.Ct. 1140, 25 L.Ed.2d 407. We find no error in permitting Mr. Rogers to testify in light of the facts that (1) he had not previously participated in the trial; (2) he withdrew from the case before he was allowed to take the witness stand; and (3) the trial was to the court and not to a jury.
Mr. Rogers testified that the patent application numbered 48,663 was filed in 1960 for Magic-Vac Corporation. A “continuation-in-part” to this application was filed some time in 1961. This application, numbered 120,873, together with number 48,663 were the patent applications conveyed by the 1962 contract between Magic-Vac and Mitchell. Mr. Rogers testified that his firm had taken over prosecution of this patent application after it had been filed; that it had been rejected by the Patent Office several times; and that each time it was rejected it was redrafted more narrowly in the hope that it might be accepted by the Patent Office. Patent application number 48,663 was abandoned in favor of number 120,873. This latter application was finally rejected by the Patent Office in November 1964.
Six months after the 1962 contract had been entered into, a third patent application was drawn up in the names of Rex. S. Hayes and F. E. Farley. According to Mr. Rogers, patent number 3,240,000 issued directly to the Mitchell Company and was never owned by Magic-Vac. He testified that the principles covered by this patent were not involved in the two patent applications assigned to Mitchell by Magic-Vac in 1962.
Plaintiffs have appealed on the basis that the findings of fact by the trial court were clearly erroneous under Rule 52(a), Fed.R. Civ.P. They carry a heavy burden, especially in light of the fact that the findings by the trial court were based primarily on oral testimony and the trial court had the opportunity to view the demeanor and pass upon the credibility of the witnesses. United States v. Denver & R.G.W.R.R., 547 F.2d 1101 (10th Cir. 1977); Snodgrass v. Nelson, 503 F.2d 94 (8th Cir. 1974).
The court below made the following findings regarding the patent rights at issue.
15. Application Serial No. 48,663 became abandoned by the attorneys for plaintiffs’ predecessor about the time of The Contract, because its substance was included within the later application No. 120,873. Despite severe reduction of the coverage claimed, in the effort to obtain allowance, Serial No. 120,873 was finally rejected by the United States Patent Office as unpatentable, a patent was refused thereon, and the application was abandoned on November 13, 1964.
16. While The Contract expressed its intention as to enable defendant to enjoy rights “to the exclusion of all others,” and to give defendant “the exclusive rights and conveyance of ownership as set forth in Paragraphs 1 and 2 of this agreement,” there never were any such exclusive rights obtained in either of the patent applications mentioned, and all chance of exclusive rights therein disappeared when Application No. 120,873 was abandoned. Hence, it is found that thereafter, Application Nos. 48,663 and 120,873 were worthless. The fact that plaintiffs’ predecessor was in such dire financial condition, in effect “broke,” at the time The Contract was entered into is further evidence that Nos. 48,663 and 120,873 were of no value.
17. After The Contract was entered into, a new application for patent was filed November 3, 1963, in the joint names of Rex S. Hayes and F. E. Farley for an improvement over the alleged invention of application No. 120,873. It is not an “invention of Rex S. Hayes” as defined by The Contract. It finally issued into Patent No. 3,240,000 on March 14, 1966.
18. It is found that Patent No. 3,240,-000 was never owned by plaintiffs’ predecessor, its application having been assigned directly to the Mitchell Company in October, 1962, by Hayes and Farley and not by plaintiffs’ predecessor. It issued to defendant.
19. Patent No. 3,240,000 differs structurally from the disclosure of Serial No. 120,873 in that it has a Fram-Type Cylindrical Filter located above a so-called drop-spacer-separator (numbered “40” in the patent) and the drop-spacer-separator in turn is located above the cone portion of the cyclone separator. This combination and sequential arrangement is not present in the earlier Hayes applications.
29. A Primary factor in determining damage to plaintiffs from failure to assign the patent is whether any other potential user of the patents or either of them existed. There is no adequate proof, that there was anyone who would use them, or either of them, or the trademark Magic-Vac, or what payment, if any, would have been made for them, or any of them.
A careful examination of the record reveals that the findings of fact made by the trial court are supported by the evidence, and that the judgment on this issue is fully supported by the facts. Filger v. Plax Corp., 261 F.2d 369 (6th Cir. 1958).
The last assignment of error is the trial court’s denial of plaintiffs’ motion for attorney’s fees, made pursuant to 12 Okl.Stat. § 936, which provides:
In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, to be taxed and collected as costs.
This court has approved the allowance of attorney’s fees under the Oklahoma statute when the claim falls within one of the categories enumerated in section 936. See e. g., Kilpatrick Bros., Inc., v. International Bus. Mach. Corp., 464 F.2d 1080 (10th Cir. 1972); Pecan & Agricultural Equip., Inc. v. Lockwood Corp., Nos. 76-1965 and 76-1966 (10th Cir. 1978).
The trial court held that the plaintiffs’ claims were based upon alleged deficiencies in the payment of royalties and alleged failure to reconvey patent and trademark rights and thus did not fall within the statutory framework of the Oklahoma statute authorizing the allowance of attorney’s fees.
The allowance of attorney’s fees in a diversity case, as this is, is a question of state law. Pecan & Agricultural Equip., Inc. v. Lockwood Corp., supra. Determination of matters of state law by the trial court sitting in the state will not be disturbed on appeal unless clearly erroneous. Manufacturer’s Nat’l. Bank of Detroit v. Hartmeister, 411 F.2d 173 (10th Cir. 1969). Based upon our examination of the entire record, we are in agreement with the trial court’s resolution of the dispute and its holding that the plaintiffs’ claims were not, as urged by the plaintiffs, actions to recover on an open account or on a contract relating to the purchase or sale of goods, wares, or merchandise, but were predicated on claims of alleged deficiencies in the payment of royalties and alleged failure to reconvey patent and trademark rights.
We find no plain error either in the findings of fact or the conclusions of law. The judgment is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_respond1_1_4
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
ANHEUSER-BUSCH, Inc. v. DU BOIS BREWING CO.
No. 9527.
United States Court of Appeals Third Circuit.
Argued Jan. 21, 1949.
Decided May 12, 1949.
Rehearing Denied July 27, 1949.
GOODRICH, Circuit Judge, dissenting.
Elder W. Marshall, Pittsburgh, Pa. (John C. Bane, Jr., Sherman T. Rock, and Reed. Smith, Shaw & McClay, Pittsburgh, Pa., Leo R. Brockbank, Du Bois, Pa., on the brief), for appellant.
Wallace H. Martin, New York City (Alter, Wright & Barron, Pittsburgh, Pa., attorneys for plaintiff-appellee, Minturn De S. Verdi, Walter J. Halliday, and Marion L. Severn, New York City, Alexander J. Barron, and James Milholland, Pittsburgh, Pa., Nims, Verdi & Martin, New York City, and Shepley, Kroeger, Fisse & Ingamells, St. Louis, Mo., on the brief), for appellee.
Before GOODRICH, McLAUGHLIN, and O’CONNELL, Circuit Judges.
O’CONNELL, Circuit Judge.
We are called upon to decide whether or not the district court erred in granting plaintiff (“Anheuser”) a permanent injunction against the use of the words “Budweiser” and “Bud” by defendant (“DuBois”) in connection with beer or any similar or related product. The claim of Anheuser is grounded upon its assertion of a common law trade name. The parties are in federal court by reason of diversity only, and Pennsylvania law controls.
Two principal issues are presented: (1) Has Anheuser established its common law right to the name of “Budweiser” as its exclusive trade name? and (2) if so, is An-heuser entitled to an injunction under the circumstances disclosed by this record ?
Certain facts are not in dispute. The name “Budweiser” traces its origin to Bud-weis, also known as Budejovice, a Bohemian town with some reputation for the beer brewed there. In 1876, one Conrad, a St. Louis beverage dealer, first applied the name to a beer brewed in the United States.
Conrad obtained a registered trade-mark for “Budweiser” in 1878. About 4% years later, the Anheuser-Busch Brewing Association- (“the Association”), manufacturer of this beer for Conrad, was given permission by him to sell with his trade-mark such “Budweiser” beer as the Association had on hand.
In 1886, Conrad registered a second trademark for “Budweiser.” Twenty-five days later, the Association (predecessor of An-heuser) also applied for a registered trademark involving a representation of the words “Original Budweiser." The Patent Office rejected the application on the basis of Conrad’s 1878 registration. The Association replied that “there is nothing in common between the parties in the manner in which they use the words ‘Original Budweiser’ to which words no one can have an exclusive right.” The Examiner then declared that “The words ‘Original Budweiser> * * * are public property and cannot of themselves constitute a trade-mark.” The Association eventually was granted registration of a trade-mark readily distinguishable in arrangement from Conrad’s.
In 1891, Conrad sold out to the Association. Between 1891 and 1898, the Association sold 785,970 barrels of “Budweiser” beer, with sales continuing to grow thereafter, . so that in 1905 alone the Association sold the equivalent of 444,265 barrels; in 1945 Anheuser, its successor corporation, sold the equivalent of more than 3,000,000 barrels.
In the period prior to 1905, the word “Budweiser” was also used by a number of other persons to' designate their beer. These may be divided into two groups: (1) Importers selling European beer, who, except during the effective period of the 18th Amendment, continued to sell such beer in the United States until shortly before trial of the instant case, and (2) persons selling domestic beer, who, with one minor exception, were dissuaded, by legal action or ¿otherwise, from continuing to use the name.
In June of 1905, Du Bois, owner of a brewery which (until 1945) never has sold more than 90,000 barrels of beer annually, began selling some of its beer under the name “DuBois Budweiser.” The labels on the bottles were and still are vastly different from those of the Association and Anheu-ser. The record amply supports the finding of the court below, however, that DuBois began marketing “DuBois Budweiser” with full knowledge of the extensive use of the word “Budweiser” by the Association. Several months later, DuBois applied for a registered trade-mark, in which application DuBois laid claim to the word “Budweiser” for beer, ale, and porter. The Association successfully opposed that application.
After also making timely demand that DuBois discontinue using the name, the Association (predecessor of Anheuser) took the controversy to court in September, 1908, by filing a bill of complaint in the federal court for the Western District of Pennsylvania. The bill sought a permanent injunction against the use of the word “Budweiser” by DuBois. DuBois filed an answer in due course. In August, 1909, the Association moved for, and was granted, a discontinuance, to which DuBois agreed. With that, the controversy remained dormant until the filing of the instant complaint in April, 1940. It is not inapposite to note that Anheuser and the Association brought nine other suits in protection of the name “Budweiser” between 1920 and 1939, besides inducing others, without court action, to refrain from using “Budweiser” and “Bud,” but that no communication with Du-Bois, formal or otherwise, was had on this subject during that entire period; and that Anheuser and its predecessor Association advertised widely and sold “Budweiser” malt syrup, yeast, and near-beer between 1918 and 1932. "
The first issue which arises from these facts is clear-cut. DuBois says the term “Budweiser” has always been descriptive ■of the type of beer which has been brewed in the town of Budweis, and that this descriptive name was and is available to anybody who wishes to make beer of the type which originally came from that community ; in short, that “Budweiser” is, like “Pilsener,” a word not subject to exclusive appropriation. Anheuser, on the other hand, says that “Budweiser” is not now, and never has been, used as the name of a •type of beer. As the background outlined .above indicates, both the Association (predecessor of Anheuser) and DuBois have •taken inconsistent positions in the past, the Association when pressing for the 1886 -registration and DuBois when seeking registration in 1905. The trial judge agreed with Anheuser, in a finding which we think is not completely harmonious with other facts he found.
This much, however, does seem beyond •dispute: (1) Bohemian beer never contains raw cereal, which is an ingredient of the .beer of both Anheuser and DuBois, and (2) •■the town of Budweis was not shown by •either litigant to have even manufactured, -much less to have been noted for, products such as near-beer which the parties mar'keted during the 20’s under the “Budweiser” label. Actually, the conclusion is not strained that both Anheuser and DuBois have adopted a name which they deemed advantageous for consumer acceptance of the commodities they were offering for .sale, just as they would have sought a Scotch name for tweeds or a French for -wines.
Much argument has been directed to' this •question, whether “Budweiser” is a descriptive word in the sense that nobody can .appropriate it to his exclusive use, as was the situation with “Shredded Wheat,” Kellogg Co. v. National Biscuit Co., 1938, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73; or -whether "Budweiser” is a geographical ■term which may and did acquire a secondary smeaning as the product of a particular 'manufacturer, as the Supreme Court of Pennsylvania found “Dundee” to be in Hartman v. Cohn, 1944, 350 Pa. 41, 38 A.2d 22. As the majority of this court views the facts, the resolving of this interesting question is unnecessary, because Anheuser would be denied injunctive relief here even if “Budweiser” does have a secondary meaning as the product of Anheuser. Consequently, we limit ourselves to the observation that, on the whole, we believe the “Dundee” rationale is that which a Pennsylvania court would apply to this record, on the ground that the record does not sustain the DuBois contention that “Budweiser” in either common parlance or even brewing circles was denominative of a beer which can be prepared and aged only with specific ingredients and according to an undeviable formula. See cases collected at Annotation, 150 A.L.R. 1067.
This brings us to the question whether Anheuser is here entitled to injunctive relief, if it be assumed arguendo that the word “Budweiser” did acquire a secondary meaning as a product of Anheuser. A preliminary problem is whether we refer to Pennsylvania or federal authorities. This court has said that whether an equitable remedy, as contrasted with a judgment at law, is to be granted is a matter for the federal court to decide for itself. See Black & Yates v. Mahogany Ass’n., 3 Cir., 1942, 129 F.2d 227, 233, 148 A.L.R. 841, certiorari denied, Mahogany Ass’n v. Black & Yates, 1942, 317 U.S. 672, 63 S.Ct. 76, 87 L.Ed. 539, and Campbell Soup Co. v. Wentz, 3 Cir., 1948, 172 F.2d 80. On the other hand, the state doctrine of laches was upheld by our decision in Overfield v. Pennroad Corp., 3 Cir., 1944, 146 F.2d 889, an approach which finds support in Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. See Annotation, 148 A.L.R. 139. The problem here, however, is largely academic, as we believe the Pennsylvania and federal decisions are in full accord.
Under both federal and Pennsylvania law, it is settled that mere laches on the part of a holder of trade-mark rights would be sufficient to deny him an accounting, but would not necessarily prevent him from obtaining injunctive relief against one guilty of fraudulent infringement of the trademark. See Klepser v. Furry, 1927, 289 Pa. 152, 159, 137 A. 175, 177, and McLean v. Fleming, 1877, 96 U.S. 245, 257-258, 24 L.Ed. 828.
The questions, then, are (a) whether “laches” is the most appropriate term which may properly be applied to the inactivity of the Association and Anheuser toward DuBois, and (b) whether DuBois was proved to be guilty of fraudulent conduct. To prevail, Anheuser needs an affirmative answer to both questions. The majority of this court holds against Anheuser on both.
(1) As to the assiduity of Anheuser: Between 1909 and 1940, without a single manifestation to DuBois of disapproval, and with full knowledge of the use of the word “Budweiser” by DuBois, Anheuser (and the Association) permitted DuBois to continue marketing DuBois Budweiser products. More than that, during the same period Anheuser and the Association did take aggressive action against others employing the term “Budweiser” for their commodities. This court is unanimous in believing that the excuses which Anheuser has given for failure to proceed against DuBois for so long a period of time are patently flimsy and may be rejected in toto. Anheuser (successor to the Association) plainly is guilty of at least inexcusable laches.
The point on which the members of this court disagree is whether the failure of An-heuser to act constituted only laches, or whether the defect is more fundamental and grave. The majority of this court is of the opinion that the conduct of Anheuser falls into the latter category.
We may start consideration of this issue with acceptance of the doctrine that a fraudulent infringer cannot expect tender mercy of a court of equity, so that mere delay by the injured party in bringing suit would not bar injunctive relief. This doctrine, however, has its limits; for example, had there been a lapse of a hundred years or more, we think it highly dubious that any court of equity would grant injunctive relief against even a fraudulent infringer. A parallel line of reasoning is. to be found in statutes of limitations, pre*scriptions and adverse possession rules, ancE the like. If one deliberately trespassing on the land of another and openly claiming it to be his own property can gain title to that land over a specified period of time, we know of no compelling reason why DuBois, known by Anheuser (and the Association) to be openly claiming ownership of the word in defiance of the exclusive right asserted by Anheuser, may not likewise acquire an. immunity to legal process by Anheuser on that score. Certainly we have found no. case in which injunctive relief was granted after an inexcusable delay for a comparable period of time. See French Republic v. Saratoga Vichy Spring Co., 1903, 191 U.S. 427, 24 S.Ct. 145, 48 L.Ed. 247. In our view, this is not merely a matter of laches ; Anheuser has been grossly remiss.
Moreover, we need not rest our decision upon the time factor alone. In two concrete ways Anheuser (and its predecessor Association) has demonstrated that to characterize its behavior as lax would be unduly charitable ; the filing of the 1908 complaint against DuBois and the voluntary dismissal shortly thereafter, and the defense of its trademark right against other alleged infringers during the ensuing years. The ability of DuBois to controvert the rights asserted by Anheuser, of course, would be impaired w ith the passage of time and death of some of the key witnesses of DuBois. The conclusion is irresistible that the Association feared the outcome of its 1908 suit, and that the long delay prior to the filing of the instant complaint amounted to at least an acquiescence in use of the word by DuBois, which Anheuser should be estopped to deny at this late hour, if it was not an actual abandonment of the exclusive right as far as DuBois was concerned.
In Procter & Gamble Co. v. J. L. Prescott Co., 3 Cir., 1939, 102 F.2d 773, at page 781, certiorari denied, J. L. Prescott Co. v. Procter & Gamble Co., 308 U.S. 557, 60 S.Ct. 80, 84 L.Ed. 468, this court expressly approved of a statement in Valvoline Oil Co. v. Havoline Oil Co., D.C.S.D. N.Y.1913, 211 F. 189, 195, which we deem particularly apropos to the case at bar: “But it cannot be equitable for a well-informed merchant with knowledge of a claimed invasion of right, to wait to see how successful his competitor will be and then destroy with the aid of a court decree, much that the competitor has striven for .and accomplished — especially in a case where the most that can be said is that the •trade-mark infringement is a genuinely ■debatable question.” This same principle -was recognized by the Supreme Court of Pennsylvania in Consolidated Home Specialties Co. v. Plotkin, 1947, 358 Pa. 14, 30, 55 A.2d 404, 412, when it said, “If the owner of a tradename acquiesces so long in the •use of that name or in a name strikingly similar thereto that the public has in general become aware of the other’s appropriation of that name and is therefore not deceived, such owner may in a proper case be treated as having abandoned his onetime property right in that name.” See also Prince’s Metallic Paint Co. v. Prince Mfg. Co., 3 Cir., 1893, 57 F. 938, 943-944.
We have said that Anheuser should he estopped from asserting its claim to exclusive use of the word “Budweiser.” Any doubt whether mere prolonged inaction of the Association and Anheuser would of itself be sufficient to warrant the invoking of this principle is dispelled by the filing and voluntary discontinuance of the 1908 suit against DuBois. If the Association did not want to lull DuBois into a false sense of security, the Association should have followed up the discontinuance of the suit with some unambiguous action asserting its claim against DuBois.
We are aware that estoppel of Anheuser depends upon a change of position by DuBois in reliance upon the misleading representation. We think the record does show such change. It is true that the barrel capacity of DuBois has not been enlarged ; and obviously DuBois would have a stronger equity if it could show that its total production had been increased. Cf. Procter & Gamble, supra. What is equally clear, however, is that DuBois did spend an appreciable amount of money in advertising its products, and that DuBois Budweiser had a noticeable though minority share of the DuBois output. Within its localized areas of distribution, DuBois assuredly has acquired over the period of years a good will in the name “DuBois Budweiser” which ought not to he eliminated at the instance of a complainant which had led DuBois reasonably to believe that use of the name would not be impugned.
.(2) As to alleged fraud of DuBois: The court below announced as a conclusion of law that “From the beginning, defendant’s use of the words ‘Budweiser’ and ‘Bud’ has been with knowledge of the rights of plaintiff and of plaintiff’s predecessors, and with the fraudulent purpose and intent of confusing and deceiving the public and of enabling the defendant’s product to be passed off as and for the product of plaintiff.” Were this conclusion based upon findings of fact not clearly erroneous, this phase of the case at bar would pose no problem on appeal. Upon examination of the record and findings of fact and opinion of the court below, however, serious doubts appear. Close analysis of this conclusion is desirable.
(a) As we have already stated, DuBois unquestionably did know of the Budweiser marketed by the Association when DuBois Budweiser was introduced in 1905. Mere knowledge, of course, does not constitute fraud, particularly when the name is being used by a number of other concerns and when the Association (predecessor to Anheuser) has declared in a public proceeding that “no one can have an exclusive right” to the word.
(b) The “fraudulent purpose and intent of confusing and deceiving the public” has not been proved.' In the opinion of the court below is included the remark that “one may be pardoned for more than a strong suspicion that the extensive advertising and quality of the Anheuser-Busch ‘Budweiser’ were not ignored in naming it [DuBois Budweiser].” On the other hand, it is clear that others were using the name as well; that DuBois made no attempt .to copy the Association labels; that, in answer to the 1908 bill of complaint, DuBois asserted that the name was in common usage and could not be exclusively appropriated, just as the Association had maintained in 1886; and that the lower court accepted as true the testimony that the president of Du-Bois had visited Germany and there become familiar with the beer of Budweis. From the. foregoing, we would not assert categorically that DuBois remained blissfully ignorant of the possibility that unwary purchasers might buy its product rather than that of the Association; but awareness ol the business possibilities of a name is not persuasive proof that the choice of the name was with fraudulent intent; i. e., a conscious effort to woo the unsuspecting disciples of the Association products. Although .the district judge had “more than a suspicion,” he apparently was not prepared,, nor are we, to state with assurance that there was fraud in the inception.
(c) The question of fraud therefore resolves itself into the sales campaign and methods of the DuBois agents. In general, the representations of DuBoiscan be classified as (a) “puffing” to which the law attaches no penalty and on which the district court did not rely, and (b) the statement that a customer ordering “Budweiser” could be served the DuBois product. As to the latter, if DuBois reasonably believed it had the right to use the word — and we have found not only that all actions of DuBois have been in conformance with such belief, but also that the Association and Anheuser generously contributed to its reasonableness — such advice is not fraudulent. A different situation would have been presented here if Anheuser had been able to-produce convincing evidence that DuBoisrepresented that DuBois Budweiser could: be served when Anheuser Budweiser was-ordered. The record certainly establishes, that the retailers who were offered the DuBois product knew or were told that it was not the “Budweiser” of Anheuser. Actually, the lower court here has spelled out “fraud” from the fact that the consuming-public has experienced some confusion, because of the identity of the name. If tendency to mistake by the public were of itself to constitute fraud, however, fraud! would be present in every case and injunc-tive relief would never be denied because ef laches.
We conclude, therefore, that much more persuasive evidence than was here adduced would be necessary before we should be prepared not only to overlook a course of action of more than thirty years but also to grant injunctive relief.
A number of other issues have been raised by this appeal, but discussion of only one of them is here necessary. As we have indicated, there is ample support in the record for the finding of the district judge that the bottles and labels of DuBois were and are clearly distinguishable from those of Anheuser. This raises the question whether the identity of the trade name would be a sufficient basis for injunctive relief after the lapse of more than thirty years. If federal law be the criterion, this issue appears set at rest by Saxlehner v. Eisner & Mendelson Co., 1900, 179 U.S. 19, 21 S.Ct. 7, 45 L.Ed. 60, and French Republic v. Saratoga Vichy Spring Co., supra. In the Saxlehner case, the Supreme Court of the United States did grant an injunction against confusingly similar labels but refused to enjoin the use of the name, when the original user had been guilty of twenty years of inaction and the copying of the labels demonstrated an attempt by the infringer to pass off his product as that of the original user. In the French Republic case, the court likewise refused to enjoin the infringer from using the word “Vichy” because the original user had delayed taking action for thirty years and because the labels were dissimilar. Comparing the prolonged delay, the distinctive labels, and the fragile evidence of fraud in the case at bar with the facts of the Saxlehner and French Republic cases, we think the same result would be demanded if federal law were controlling. Although Pennsylvania courts appear not to have passed upon this particular question, the language hereinbefore quoted from Consolidated Home Specialties Co. v. Plotkin, supra, indicates that, as usual in the law of unfair competition, Pennsylvania would adhere to the federal view. See Gum, Inc. v. Gumakers of America, 3 Cir., 1943, 136 F.2d 957, 960.
Accordingly, we believe that a court of equity should refrain from interfering with the status quo. The parties should be left in the same situation as they were on April 20, 1940, the date of filing of the instant complaint. Anheuser has permitted DuBois to conduct a localized operation over so long a period of time that it would be inequitable to compel DuBois to surrender use of the name at this time. By the same token, DuBois, having confined the sale of its DuBois Budweiser product to localized territory, should not expect to extend its use of that name to other areas with legal impunity.
For the reasons stated, the decree of the lower court will be reversed.
The lower court did not order an accounting because of a prolonged delay by Anbeüser which we discuss in a later portion of this opinion. Anheuser did not appeal from that determination. The opinion of the district court is reported at D.C.W.D.Pa.1947, 73 F.Supp. 338.
At the outset of the trial in the court below, Anheuser declared that its cause of action would not be based upon its trade-marks registered under federal legislation.
In the proceedings, the Patent office objected to registration of the trade-mark requested by Conrad, “Budweiser Lager Beer,” because a decision of the Commissioner “precludes descriptive matter from being embraced as essentially a part of a registrable trade-mark." Conrad thereafter amended his claim to exclude the word “Lager.” Then the application was granted.
The Anheuser-Busch Brewing Association is the predecessor corporation to Anheuser. Although for accuracy this opinion will frequently refer to the Association rather than to Anheuser, it is important to note that, in legal effect, the actions of the Association are those of Anheuser for the purposes of the case at bar.
For example, the district judge found that the purpose of Conrad was that the beer “should be similar in quality, color, flavor, and taste to the ‘Budioeiser’ beer .then being made in Bohemia.” (Emphasis added.) 73 F.Supp. at page 343. Also, the trial judge tended to treat “geographic” as being synonomous with “descriptive” in discussing the term.
The excuses are: (1) That DuBois did not object in 1909 to discontinuance of the suit, (2) that one of the officers of the Association was ill, and (3) that an era of alcoholic prohibition was im-miment and became a reality. We emphasize that none of these factors prevented Anheuser and the Association from taking .vigorous and timely action against other users of the word “B'ud-weiser” during that period. As to the discontinuance of the suit, we might add that few defendants so relish the trial of a suit against them as to oppose a voluntary dismissal of such suit.
A trade-mark is not a right in gross, or at large, like a patent or copyright.. It is but a means for facilitating the protection of one’s good-will. United Drug Co. v. Theodore Rectanus Co., 1918, 248 U.S. 90, 97-98, 39 S.Ct. 48, 63 L.Ed. 141.
In this connection, we note that the 1908 complaint asserted rights under a 1907 trade-mark registration of highly dubious validity, and that the complaint inaccurately intimated that Conrad had •coined the term “Budweiser”.
While it is true that fraud was not .present in the Procter & Gamble case, we note that the infringer did apparently have knowledge of the prior claim in the Valvoline case.
The advertising expenses were $29,-783.93 between 1909 and 1919, and $244,-.836.94 between 1933 and 1945. What »1>art of these sums may be allocated to DuBois Budweiser is not disclosed by the record.
It has been suggested that DuBois Budweiser attained more success in barrel than in bottle sales, perhaps because it would be easier to pass it off as Anheuser Budweiser. The sales records of DuBois do not bear out this contention. Until 1941, the sales figures fluctuated without a discernible pattern other than that increase in bottled DuBois Budweiser sales was accompanied by decrease in barrel DuBois Budweiser sales, and vice versa. During World War II, both barrel and bottled DuBois Bud weiser sales measurably increased.
Into this category fall such remarks as that DuBois Budweiser was the “original”, that the right to use the name had been won in the courts, and that the two beers were comparable in quality.
We believe no weight can be attached to the fact that the DuBois product was invoiced occasionally as “Budweiser” or “Bud.” Such shorthand methods of identification never were intended by Du-Bois or construed by the purchasers to mean that DuBois was asserting a right to the word “Bud” or that the product of Anheuser was being supplied.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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songer_casetyp1_7-3-3
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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 issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
AD-VANTAGE TELEPHONE DIRECTORY CONSULTANTS, INC., Plaintiff-Appellee, Cross-Appellant, v. GTE DIRECTORIES CORPORATION, Defendant-Appellant, Cross-Appellee.
No. 85-3970.
United States Court of Appeals, Eleventh Circuit.
Aug. 27, 1987.
As Amended Sept. 4, 1987.
James J. Kenny, Kenny, Nachwalter & Seymour, Miami, Fla., for defendant-appellant, cross-appellee.
Jawdet I. Rubaii, Atty., Clearwater, Fla., John R. Ferguson, Swidler & Berlin, Washington, D.C., for plaintiff-appellee, cross-appellant.
Before HILL and HATCHETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.
HILL, Circuit Judge:
This case is another poignant illustration of the fact that when business relationships turn sour, the ailing party is apt to turn to the Sherman Act for relief.
THE FACTS
Appellant, GTE Directories Corp., (GTEDC) is a wholly owned subsidiary of the GTE Corporation. GTEDC enters into contracts with telephone operating companies, including those companies owned by GTE, to publish the telephone company’s directory. This lawsuit concerns the directories published by virtue of GTEDC’s lawful contract to be the official publisher of the General Telephone Company of Florida’s directories for Tampa, Clearwater and St. Petersburg, Florida. GTEDC sells advertising space in these directories; this advertising space is the familiar “yellow pages,” containing advertising of businesses with products and services to sell in the community covered by each particular directory.
According to the uncontradicted testimony of John D. O’Neill, former vice president of GTEDC, prior to 1975 Yellow Pages advertising had been coordinated by American Telephone & Telegraph Company (ATT). In May of 1975 ATT, decided to abandon this role, and their coordinating efforts were taken on by the newly formed National Yellow Pages Service Association (NYPSA), which was founded as a self-regulating organization of the publishers of telephone directories. One of the first issues which the NYPSA tackled was the coordination of national advertising. Because each publisher dealt with directories published in specific communities, a national company wishing to place advertisements in many different directories from many different publishers. To ameliorate the logistical problems this situation caused, the NYPSA created the position of Authorized Selling Representative (ASR). According to the NYPSA bylaws and guidelines, an ASR was authorized to sell advertising to any national advertiser on behalf of any publisher within NYPSA. Thus, a national advertiser, such as Greyhound Bus Lines, could purchase an advertisement in the directory of every major metropolitan area in the United States and receive only one bill from the ASR with whom it was dealing. It is the responsibility of the ASR to coordinate the advertising, i.e., to contact each publisher about placing an ad. The publisher pays a 25% commission to the ASR for each advertisement placed in its directory.
According to the guidelines published by NYPSA, in order to qualify as “national yellow pages advertising,” an advertising package must involve two or more publishers, and be designed to place ads in 20 or more directories in at least three states, with 30% of the advertising revenue generated in states outside the primary state. However, the guidelines go on to say, “this minimum standard does not preclude any member [publisher] from accepting as a yellow pages service ad any advertising program having fewer publishers, fewer directories, or fewer states, than the minimum standard.”
The guidelines provide that each publisher will recognize an ASR’s national sales, and will pay a commission on those sales. Under the NYPSA guidelines, the publisher in whose directory a national ad is placed bills the ASR for the advertising space, and the ASR is ultimately responsible for payment. The ASR collects from its advertiser clients. Each publisher has the right not to deal with an ASR who fails to pay its bills promptly, or otherwise cannot establish itself as a good credit risk. Many of the publishers of telephone directories are themselves qualified ASR’s. At the time the events involved in this litigation took place, GTEDC had a separate department qualified as an ASR for national yellow pages advertising.
Mr. Joel Blumberg is the central figure in this litigation. He was a sales person for GTEDC until 1975 when he started his own business as a “yellow pages consultant” in the Tampa Bay area. In 1979, after NYPSA authorized nonpublisher ASR’s to sell national yellow pages advertising, Blumberg’s company, Ad-Vantage Telephone Directory Consultants, Inc. (“Ad-Vantage”) became an ASR.
Once in business as an ASR, Mr. Blum-berg decided to “discount” yellow pages advertising. He accomplished this by charging his clients less than the publisher’s established rate for a yellow pages advertisement. However, Ad-Vantage was still required to pay the publisher full price for the ad. Presumably, the difference between what Ad-Vantage had to pay a publisher and the amount paid by its clients to Ad-Vantage came out of Ad-Vantage’s commissions.
GTEDC was apparently concerned about discounting, allegedly because ASR’s who failed to charge their clients the authorized rate for yellow pages advertising seemed unable to pay their publisher’s bills on time and also provide “full and comprehensive service” to their clients. This concern was expressed in the first issue of “NYPSA News” a newsletter published by GTEDC in May of 1982.
Evidently one of the “discounting ASR’s” who did have some problems paying its bills was Mr. Blumberg’s company, Ad-Vantage Inc. Mr. Blumberg’s own testimony indicated that, at least in the early part of 1982, the company was having to finance some of its clients’ accounts by paying the publishers before it received payment from its advertisers.
According to its version of the facts, GTEDC suffered chronic collection problems with Ad-Vantage over a period of two years. The extent of Mr. Blumberg’s failure to keep Ad-Vantage’s account with GTEDC “current” was hotly disputed at trial. However, it was undisputed that several checks sent to GTEDC by Ad-Vantage had bounced. After extensive contacts with Mr. Blumberg regarding Advantage's alleged indebtedness to GTEDC, a senior attorney in charge of collections at GTEDC sent a letter directly to the advertisers for whom Ad-Vantage had placed advertisements in the GTEDC directories. The letters, dated May 6, 1982, explained that certain difficulties had arisen between GTEDC and Ad-Vantage; that GTEDC would bill each advertiser directly for its advertising submitted through Ad-Vantage; and that future advertising orders submitted by Ad-Vantage must be accompanied by advance payment, or a guarantee of payment by the advertiser.
Mr. Blumberg was advised of this direct mailing by letter dated May 10,1982. This letter advised Mr. Blumberg that according to GTEDC’s records, his company still owed GTEDC $38,424.06, and that another $122,335 would be due promptly. The letter informed Mr. Blumberg that “when you are able to bring your account to a current status with GTE Directories Corp., we will once again be willing to accept your orders in the normal course of business.”
Ad-Vantage claimed that as a result of GTEDC’s direct contact with its clients, it lost several major accounts, and ultimately went out of business (to be immediately reborn under the name of National Yellow Pages Directories Services). Accordingly, Ad-Vantage sued GTEDC in federal district court, claiming, inter alia, that GTEDC’s action violated the Sherman Act and the Florida anti-trust statute, and constituted breach of contract, and tortious interference with business relations under Florida law. GTEDC counter-claimed for $208,000 which it claimed Ad-Vantage still owed on past due accounts.
The case went to trial before a jury, and the jury returned a verdict in favor of the plaintiff, Ad-Vantage, but only on the antitrust claims brought under the Florida Anti-trust Act, and the tortious interference with business relations claim. GTEDC prevailed on its counter-claim. The jury awarded Ad-Vantage $1.5 million in compensatory damages on the Florida anti-trust claim, and $500,000 in punitive damages on the interference with business relations claim. The antitrust award was trebled, pursuant to Florida law, for a total award of $4,500,000. The court then struck the $500,000 punitive damage claim as duplicative in light of the punitive nature of the treble damages awarded on the antitrust claim.
On appeal, GTEDC claims that the district court erred in not directing a verdict or entering judgment notwithstanding the verdict on the monopolization claims, on grounds that Ad-Vantage failed to offer evidence of a relevant market; that the district court should have directed a verdict or granted J.N.O.V. on the business tort claim because GTEDC’s actions were justified under Florida law; that the district court erroneously instructed the jury as to Florida law on tortious interference with business relations; and that a directed verdict or J.N.O.V. should have been entered for GTEDC because Ad-Vantage's evidence on the issue of damages was insufficient. Ad-Vantage cross-appeals, claiming that the district court erred by not adding the $500,000 in punitive damages to the treble damages awarded on the anti-trust claim. It also argues that should this court reverse any part of the verdict in favor of Ad-Vantage, it must also reverse the judgment for GTEDC.
I. THE ANTI-TRUST CLAIMS
We turn first to GTEDC’s arguments regarding the district court’s failure to direct a verdict on Ad-Vantage’s anti-trust claims. The crux of its argument is that Ad-Vantage failed to prove a relevant market within which a jury could correctly evaluate the effect of GTEDC’s actions upon its competition.
Initially, we must note that the jury rendered a verdict for the defendant, GTEDC, on the federal anti-trust claims. GTEDC was found liable only for violating Florida anti-trust law, and only that portion of the Florida Anti-Trust Act of 1980 which tracks Section 2 of the Sherman Act, 15 U.S.C. § 2. Fla.Stat. § 542.19 provides:
Monopolization; attempts, combinations, or conspiracies to monopolize.— It is unlawful for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce in this state.
The Florida Anti-Trust Act further provides, in section 542.32, that:
In construing this chapter, due consideration and great weight [shall] be given to the interpretations of the federal courts relating to comparable federal anti-trust statutes____
In applying this provision, the Florida courts held that the Florida legislature has, in effect, adopted as the law of Florida the body of anti-trust law developed by the federal courts under the Sherman Act. St. Petersburg Yacht Charters, Inc. v. Morgan Yacht, Inc., 457 So.2d 1028 (Fla.App.1984). Thus, in analyzing this case, we may, and indeed must, apply the federal precedent developed under Section 2 of the Sherman Act.
Section 2 (and the comparable Florida statute) present two potential antitrust offenses: monopolization and attempt to monopolize. To prove monopolization, the Section 2 plaintiff must demonstrate possession of monopoly power in the relevant market, and the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. United States v. Grinnel Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); Dimmitt Agricultural Industries, Inc. v. CPC International Inc., 679 F.2d 516 (5th Cir.1983), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1982). To prove an attempt to monopolize a plaintiff must demonstrate that the defendant had a specific intent to accomplish the illegal result, i.e., monopolization, and that there existed a dangerous probability that the attempt would be successful. Spectrofuge Corp. v. Beckman, 575 F.2d 256, 276 (5th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). In this circuit a Section 2 plaintiff attempting to prove either completed monopolization or an attempt to monopolize must “provide the jury with sufficient evidence to permit it to define the relevant geographic and product market.” In re Municipal Bond Reporting Anti-Trust Litigation, 672 F.2d 436, 441 (5th Cir.1982); Dimmitt, 679 F.2d at 525. In proving an attempt to monopolize, the relevant market must be demonstrated in order to show that there was a dangerous probability of monopolization in a relevant market. Thus, both aspects of a Section 2 violation require proof of a relevant market.
As in most anti-trust litigation, the relevant market was a subject of hot dispute in this case, and the confusion was exacerbated by appellee’s chameleon-like ability to shift the focus of its market analysis between national and local advertising. The relevant market is a question of fact for the jury. See Dimmitt, 679 F.2d at 527; Mesirow v. Pepperidge Farm, Inc., 703 F.2d 339, 345 (9th Cir.1983), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93. In its motion for a directed verdict, and again in its motion for J.N.O.V., GTEDC maintained that Ad-Vantage failed to demonstrate a relevant market.
In evaluating this claim, we are mindful of the Supreme Court’s recent admonition that, “a trial judge must direct a verdict only if, ‘under the governing law, there can be but one reasonable conclusion as to the verdict... if reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). After carefully evaluating all of the arguments made by both parties, and after examining all of the evidence presented on this issue with painstaking thoroughness, we conclude, for the reasons given below, that the district court ought to have granted a directed verdict or J.N.O.V. in favor of GTEDC on the anti-trust claims.
We begin by examining Ad-Vantage’s claim that “yellow pages advertising” is a relevant product market. The relevant market is made up of those “commodities reasonably interchangable by consumers for the same purposes.” United States v. DuPont & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264 (1955). Ad-Vantage offered sufficient testimony to allow the jury to conclude that advertising in telephone directories is unique. In other words, other forms of advertising, such as advertising in newspapers, consumer magazines, or business publications, was not seen by businesses as a suitable substitute for yellow pages advertising. In addition, the increase in price of yellow pages was not commensurate with increases in the pricing of other forms of advertising. However, we note (for reasons which will become important later in our analysis) that all of Ad-Vantage’s evidence dealing with the uniqueness of yellow pages advertising related only to advertising in the “official” yellow pages, i.e., advertising published in telephone directories published under contract with the telephone company operating in a specific geographic area.
Determining the product market is only the first step. The relevant product market must also be accompanied by proof of the relevant geographic market. This is the “area of effective competition” within which the parties operate. Standard Oil Co. v. United States, 337 U.S. 293, 299, 69 S.Ct. 1051, 1055, 93 L.Ed. 1371 (1949). Initially, all of Ad-Vantage’s anti-trust claims rested upon the fact that GTEDC and AdVantage were both Authorized Selling Representatives of national advertising. Evidence offered at trial indicated that competition for national ad campaigns did take place between GTEDC’s national sales force (its own ASR) and Ad-Vantage. As an ASR, GTEDC’s national sales force solicited advertising not only for its own telephone directories, but also advertising to be placed in the directories published by other members of the NYPSA. When acting as an ASR, the national sales force for GTEDC earned a commission on the ads placed with other publishers, the same as a nonpublisher ASR would earn.
Ad-Vantage originally claimed that GTEDC’s actions as an ASR were aimed at destroying competition in two relevant geographic submarkets. The first submarket consisted of the sale and purchase of yellow pages advertising space by businesses qualifying as national accounts situated or headquartered in any community or section of the United States. The second submark-et consisted of the sale of national advertising in specific yellow pages directories, published in and for a specific community, such as the directories that GTEDC published for Tampa, St. Petersburg, Clear-water, etc.
The problem with these market definitions soon became evident at trial. AdVantage could muster no proof that GTEDC, as an ASR, had obtained any significant degree of market power in the area of national yellow pages advertising. In other words, while GTEDC as an ASR competed with Ad-Vantage as an ASR for the sale of national advertising, Ad-Vantage could offer no proof that GTEDC had monopolized national advertising or had attempted to monopolize national advertising, either in the nationwide market or as appearing in any given directory. We need reiterate at this point that “national advertising,” according to the NYPSA guidelines, meant advertising programs ordering ads to appear in 20 or more different directories, published by two or more different publishers, placed in at least three different states, with 30% of the advertising revenue outside the primary state.
With its national advertising theory rapidly collapsing, Ad-Vantage moved to amend its complaint to conform to the evidence produced at trial. The amendment was allowed, primarily because GTEDC failed to show that it would be prejudiced. Thus, the final market asserted by Ad-Vantage, on which the jury received instructions, was as follows:
Ad-Vantage claims that the relevant market or submarket in this case is the purchase and sale of advertising space in a specific yellow pages directory covering a specific geographic area, for example, Tampa, Clearwater and St. Petersburg. It includes buyers and sellers such as GTEDC directories corporation and authorized selling representatives, wherever located, desiring to purchase advertising space from the publisher, such as GTE directories corporation, of the Yellow Pages directory for any specific geographic area.
The purpose of this amendment was to shift the focus from national advertising to local advertising within the telephone directories produced by GTEDC for the Tampa Bay communities. This was accomplished by switching from sale of “national advertising” to “sale of advertising space.” The conclusion that this definition shifted the market focus to local advertising is supported by the fact that the jury found GTEDC liable for violating only the Florida antitrust laws. The only distinction between the Sherman Act and the Florida law is that the Florida law does not require an effect on interstate commerce. St. Petersburg Yacht Charters, 457 So.2d at 1032. “National” advertising clearly effects interstate commerce; it is designed to promote it.
A local advertisement differs markedly from a national ad. A local ad is bought by a local business and appears only in the directory or directories which serve the same geographic area as the one in which that business operates. For example, a “Mom and Pop” grocery store located in St. Petersburg would buy an advertisement in the St. Petersburg directory. It would have no reason to advertise in all of the major metropolitan areas of the United States. Uncontradicted testimony by NYP-SA officials at the trial established that most local advertising is placed by direct contract with the publisher of the local directory.
The NYPSA guidelines do establish that, should a publisher desire, it may accept orders for local advertising from an Authorized Selling Representative and treat such advertising as if it were a national ad. That is, a publisher who receives an order for a local ad from an ASR may accept it and may pay the ASR who obtained the ad a commission. However, it is clear that it is the individual publisher’s prerogative to decide whether or not it will pay a commission to ASRs for placements of local advertising. On the other hand, each publisher is bound by the NYPSA guidelines and bylaws to honor an ASR’s placement of a national ad; in that case it must pay the commission.
Counsel for Ad-Vantage explicitly recognized GTEDC’s exclusive right to control the sale of local advertising within its publications up until the time that it successfully amended its complaint at trial. In its original amended complaint, Ad-Vantage related that, “coincident with its exclusive publication rights, GTEDC is authorized by the local telephone companies as the exclusive agent for the solicitation of yellow pages advertising from local accounts, i.e., advertisers not qualified as “national accounts,” in each locality for which it publishes a directory____” Further, in his opening argument, counsel for Ad-Vantage stated, “GTEDC has the exclusive right to sell what is called local clients.” He stated further, “GTEDC, notwithstanding the creation of NYPSA, notwithstanding the creation of ASRs, still reserves to itself the exclusive right to sell all local advertising. Ad-Vantage, Mr. Blumberg, cannot sell advertising to advertisers who do not qualify as national accounts, and he can’t give them a price break.”
The evidence precipitating Ad-Vantage’s change of heart with respect to local advertising came in the form of testimony by two yellow pages advertisers, Peter J. Blank of Home Federal Bank, and Alfred C. Grecco, of Apsco Appliance and TV Centers, for whom Ad-Vantage placed local advertisements with GTEDC. Ad-Vantage apparently received a commission from GTEDC for placement of these ads. In addition, testimony by a GTEDC official indicated that because GTEDC took orders for more than a million ads a year, it could not stop to make sure that all of them were national rather than local ads. It was simply uneconomical to police the ads placed by ASRs.
Based on the above evidence, Ad-Vantage reasoned that there was really no difference between national accounts and local accounts. Thus, it could be said that Ad-Vantage “competed” with the GTEDC's local sales force for the sale of local advertising. GTEDC published the only directories carrying official yellow pages advertising, and local accounts made up 90% of the advertising in the Tampa GTEDC directory. Thus, counsel for Ad-Vantage argued, GTEDC had a 90% share of the relevant market according to this logic.
On motion for directed verdict, counsel for GTEDC rationally pointed out that AdVantage’s new theory of the case meant that GTEDC was being accused of monopolizing its own telephone book. GTEDC’s 90% “market share” was nothing more than a reflection of the fact that it had a lawful contract with the telephone company to produce the telephone directory and solicit local advertising for that directory.
In response, counsel for Ad-Vantage added the final gloss to its market theory. Faced with a 90% lawful monopoly, it argued that the publication of the telephone directory was a separate activity from the sale of yellow pages within that directory. In other words, it argued that the lawful power to publish the exclusive directory for a specific geographic area did not give GTEDC the right to be the exclusive seller of advertising space within the directory which it published.
Based on this theory, the court instructed the jury:
GTE Directories Corporation, by virtue of its contract with General Telephone Company of Florida, possesses a lawful monopoly over the product it produces, the official Yellow Pages Directory for the City of Tampa and other communities. That GTE Directories Corporation possesses the power to publish its directories and to set rates for advertising space in those directories is not to be considered by you as evidence of monopoly power, monopolization or an attempt to monopolize.
On the other hand, that lawful monopoly to publish the official yellow pages and to set rates for advertising space in the yellow pages may not be exercised to the end that another activity is monopolized or attempted to be monopolized.
The district court never defined what “another activity” might be in the context of this case. Based on these instructions explaining Ad-Vantage’s final version of its market theory, as argued by its counsel in closing arguments, the jury found GTEDC liable for monopolization and attempted monopolization under Florida law.
We must admit that this market theory has a certain superficial appeal. It seems analogous to a typical wholesale/resale monopolization case. In fact, for Ad-Vantage’s theory to work, the appropriateness of that analogy is crucial. GTEDC must be viewed as a wholesaler or manufacturer of advertising “space.” Ad-Vantage must play the role of retailer of this space. AdVantage sells the space to consumers of yellow pages advertising. While GTEDC’s contract with the telephone companies enables it to manufacture the space, it cannot use its manufacturing power as leverage to control another level of activity, i.e., the retail sale of this space. Unless this analogy is justified by the commercial realty existent here, Ad-Vantage’s claims must fall, because it is not a lawful competitor of GTEDC for local advertising; the relevant market is the area of effective competition.
A Section 2 claim can be supported by limiting the market definition to a single level of distribution where a vertically integrated manufacturer uses his dominant position at one level of competitive activity (manufacturing) to eliminate competition at another level (retailing). See e.g., Spectrofuge, 575 F.2d 256 at 282; Eastman Kodak v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927); Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334, 339 (5th Cir.1970), cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1971). Becker v. Egypt News Company, Inc., 713 F.2d 363 (8th Cir.1983). In these cases, the monopolist is seen as imposing a vertical restraint on intrabrand competition. See also Paschall v. Kansas City Star, 727 F.2d 692, 698 (8th Cir.1984), cert. denied, 469 U.S. 872, 105 S.Ct. 222, 83 L.Ed.2d 152 (legitimate business reasons for vertical integration will negate antitrust liability in the absence of “dirty tricks.”)
However, the superficial similarity between this case and the vertical restraint cases cited above fails when the commercial reality of GTEDC’s local advertising sales is carefully examined. To the extent that the sale of yellow pages advertising is an activity separable from the publishing of that advertising the sales made by non-GTEDC ASR’s are in the nature of an agency and not retail sales.
The wholesale/resale analogy falls for several reasons. First, there is no “resale.” Yellow pages is not a product that is produced and distributed. The blank yellow pages do not exist prior to the sale of an advertisement, somehow awaiting distribution on a resale market. Each advertisement, that is, the space for the ad, is “created” when the advertisement is sold to the advertiser. A GTEDC official testified that publishers will make the yellow pages as large as is necessary to accommodate all of the advertisements placed in it. ASRs do not maintain an inventory of ad space to be sold. An ASR cannot purchase a page in the yellow pages and then distribute it to advertisers as it sees fit.
Thus, the market structure at issue here is quite different from the wholesale/retail schemes used to support Section 2 claims in the cases cited by Ad-Vantage. In Poster Exchange, 431 F.2d 334, the defendant was a manufacturer who made a bona fide sale of its products to its distributors, who then sold the products to the consumers. In Heatransfer Corp. v. Volkswagenwerk, 553 F.2d 964 (5th Cir.1977), cert. denied, 420 U.S. 929, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978), the defendant was accused of using its power over one product, the manufacture of Volkswagens, to control the sale of airconditioning units for those Volks-wagens, when four different companies were producing air conditioning units for use in Volkswagen cars. In Becker v. Egypt News, 713 F.2d at 363, the defendant was accused of using its power in the wholesale market to control the retail market for the Daily Racing Form. However, the daily racing form was a commodity, produced and sold to the retailer, who assumed all the risks of distribution.
The failure of the wholesale-resale analogy is further illustrated by comparison to Sherman Act Section 1 resale price maintenance cases. In a typical price maintenance case, a manufacturer produces a product, and sells it to a retailer. The manufacturer then attempts, in some way, to control the price that its retailer can charge for the product. Retail price maintenance is considered per se illegal under the Sherman Act. Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). It applies where the risks of distribution are borne by otherwise independent firms in competition with each other. Green v. General Foods Corp., 517 F.2d 635 (5th Cir.1975), cert. denied, 424 U.S. 992, 96 S.Ct. 1409, 47 L.Ed.2d 348 (1976).
In some cases, however, an activity which looks like resale price maintenance is held not to fall within that category because the relationship between the parties is not that of wholesaler-retailer. The pivotal case establishing this doctrine is Unit ed States v. General Electric Company, 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362 (1926), which held that a genuine agency or consignment relationship falls outside the per se rule of Dr. Miles. Thus, in General Electric the Supreme Court found that General Electric’s patent on the light bulb it manufactured resulted in a consignment rather than a wholesale/resale relationship with its “distributors.” Similarly, in Hardwick v. Nu-Way Oil Co., 589 F.2d 806 (5th Cir.1979), we found that where service station operators, “were little more than salaried conduits to enable Nu-Way Oil to make retail sales directly to the consumer,” resale price maintenance was not at issue. See also Green v. General Foods, 517 F.2d at 635 (per se prohibition on resale price maintenance prohibits such where the risks of the distribution process are bom largely by numerous otherwise independent individuals or firms in competition with each other for sale of a product). The implicit assumption behind all these cases is there can be no antitrust violation without a competitor, and agents do not compete with those whom they represent.
We find a recent case from the Seventh Circuit to be particularly instructive in analyzing the Yellow Pages market. In Illinois Corporate Travel, Inc. v. American Airlines, 806 F.2d 722 (7th Cir.1986), McTravel sued American Airlines for American’s refusal to allow McTravel to write tickets good for travel on American. American admitted that it refused to allow McTravel to sell tickets on American because McTravel would not agree by contract to refrain from advertising discounts. McTravel wanted to let people know that it would rebate part of its usual 10% commission from American to the consumer should a traveler book his or her flights through McTravel.
American’s policy was functionally a price restriction. However, the district court declined to issue a preliminary injunction based on a resale price maintenance claim because it concluded that McTravel and other travel service companies are agents of the airline companies. The court of appeals affirmed the district court’s decision, concluding that “travel service operators cannot resell air travel.” This decision was based on the following findings. An air carrier establishes the price for its tickets and announces that price to the public; it determines the numbers of flights and the destinations of each; a traveler has a choice between dealing directly with the airline or through a travel agent, but the travel agent must obtain the airline’s clearance to make a reservation. The travel agent does not purchase an inventory of seats. Travelers receive the service they have paid for directly from the airline; and, although a travel agent may lose his commission when a ticket is not used, the risk of unfilled seats remains at all times with the airlines. Id. 806 F.2d at 725.
We find this analogous to the relationship between an ASR and a yellow pages publisher. The publisher lawfully establishes the price for its advertising and announces it to the public. It determines when it is going to publish directories, and has the ultimate say on how many advertisements it will accept. An advertiser may deal directly with the publisher, or may use an Authorized Selling Representative. However, should it use an ASR, the ASR must submit a request for advertising to the publisher, analogous to a reservation in the forthcoming publication. The ASR does not purchase an inventory of yellow pages space. The service which the advertiser has paid for is performed by the publisher, not the ASR. Further, should the advertisement fail to appear as requested in the appropriate directory, the publisher is under an obligation to refund the advertiser’s money. Finally, should a publisher not receive enough advertisements to make a directory profitable, it must still publish the directory; the publisher retains the “risk” that not enough yellow pages advertisements will be “distributed” — not the ASRs.
The record in this case is replete with evidence that an Authorized Selling Representative functions as an agent, not a retailer. The NYPSA guidelines provide that, “in any case where a difference arises between an advertiser and the publisher, [the ASR] represents the publisher’s interest.” The application for ASR status states that, “the undersigned further understands that when selling National Yellow Pages advertising to national advertisers or their advertising agencies, or when negotiating disputes with such national advertisers or their advertising agencies, it is representing the publishers who are members of this association____” Finally, the executive director of the National Yellow Pages Association, Fred Smykla, testified that an ASR represents the publisher in all things that the publisher does, and is expected to act in the publisher’s best interests.
There is some evidence in the record to indicate that an ASR, when purchasing advertisements on behalf of an advertiser, is acting as the agent of the advertiser. For example, letters from GTEDC to Ad-Vantage’s client referred to Ad-Vantage as the advertiser’s agent. Also, should the advertiser fail to pay the ASR through whom it purchased yellow pages advertising, that ASR is still liable to the publisher for payment. However, this does not establish that a dual distribution system existed; it merely means that all advertising was purchased directly from the publisher, and that the advertisers who dealt through an ASR had an agent acting on their behalf. Either way, an ASR functions as an agent, not an “independent contractor,” and not, in any case, as a retailer of yellow pages advertising space. There was simply no evidence presented which would allow a reasonable jury to reach the latter conclusion, a conclusion essential to Ad-Vantage’s market theory. Thus, Ad-Vantage’s leveraging argument fails. There was no “second activity” monopolized by using GTEDC’s lawfully acquired market power to publish telephone directories as leverage.
Once the market structure is thus clarified, we can distinguish this case from the most relevant former fifth circuit precedent, Six Twenty-Nine Productions v. Rollins Telecasting, Inc., 365 F.2d 478 (1966). In that case, a television station with a lawful local monopoly decided to expand its in house advertising agency services. That is, in addition to selling air time, it began producing television advertisements and receiving additional remuneration
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_attyfee
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
REX CHAINBELT, INC., Plaintiff-Appellee, v. Claude S. BRINEGAR, Secretary, Department of Transportation, et al., Defendants-Appellants.
No. 74-1309.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 11, 1975.
Decided March 10, 1975.
Thomas S. Moore, Atty., App. Section, Civ. Div., U. S. Dept, of Justice, Washington, D. C., for defendants-appellants.
Andrew O. Riteris, Edward W. Mentzer, Milwaukee, Wis., for plaintiff-appellee. ¡
Before PELL, Circuit Judge, TONE, Circuit Judge, and JAMESON, Senior District Judge.
Senior Judge William J. Jameson of the District of Montana is sitting by designation.
PER CURIAM.
The sole issue on this appeal is whether the judgment of the district court on remand is in accordance with the opinion of this court in Rex Chainbelt, Inc. v. Volpe, 486 F.2d 757 (7 Cir. 1973).
Rex Chainbelt, Inc., plaintiff-appellee, is engaged in the manufacture of concrete mixers which are designed to be mounted on truck chassis-cabs. Rex sells the mixers and normally installs the mixer on a chassis which is purchased by the customer from a manufacturer other than Rex.
In 1971 the National Highway Traffic Safety Administration (NHTSA) issued regulations under the authority of the National Traffic and Motor Vehicle Safety Act of 1966 dealing with motor vehicles manufactured in two or more stages. Regulation 49 C.F.R. § 568.6(b) required Rex, as the final stage manufacturer (49 C.F.R. § 568.3), to certify that the entire vehicle — chassis-cab and mixer — conformed to all applicable federal motor safety standards.
In Rex Chainbelt, Inc. v. Volpe, supra at 761-762, this court concluded that the “Secretary has power under the Act to require manufacturers not working through distributors and dealers to certify their vehicles or their equipment,” but that “to the extent that the regulations require Rex to make the sole certification of compliance of the entire vehicle they must be declared invalid.” On remand, the district court entered the following judgment:
“Ordered and adjudged that Section 568.6(b) of Part 568 of Title 49 of the Code of Federal Regulations is invalid because it contravenes the language of the National Motor Vehicle Safety Act of 1966 ... to the extent that said Section is interpreted to require that a final stage manufacturer, as a concrete mixer manufacturer or his dealer or distributor, certify the compliance of the chassis-cab and its components to motor vehicle safety standards in those instances where the final-stage manufacturer mounts the mixer on a chassis-cab which has been purchased by the mixer customer from a source other than the final-stage manufacturer.”
Strictly speaking, the judgment is in accordance with this court’s order on remand. It appears, however, that it can be clarified to satisfy all the parties to this litigation. At oral argument counsel for the respective parties agreed that this court’s holding in Rex Chainbelt, Inc. v. Volpe “should be interpreted to mean that the Act requires that in instances where the customer purchases a chassis-cab from its manufacturer and thereafter the mixer from the mixer manufacturer, the ‘entire vehicle’ must be certified via two certifications, with the chassis-cab manufacturer certifying its chassis-cab, and with the mixer manufacturer certifying its mixer and the effect of the mounting, if any, to thus obtain effective certification of the ‘entire vehicle.’ ”
We agree and remand to the district court to add to the judgment the clarifying provision acceptable to the parties.
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff, Appellee, v. Robert ALMONTE, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Michael P. RICAPITO, Joseph F. Corrigan, Jr., Defendants, Appellants.
Nos. 77-1539, 77-1540.
United States Court of Appeals, First Circuit.
Argued Dec. 5, 1978.
Decided Feb. 21, 1979.
John J. Bevilacqua, Providence, R.I., for Robert Almonte, defendant, appellant.
Charles J. Rogers, Jr., Alton W. Wiley, Providence, R.I., and William M. Kunstler, New York City, with whom Jacob R. Evseroff, Brooklyn, N.Y., was on brief, for Michael P. Ricapito and Joseph F. Corrigan, Jr., defendants, appellants.
Edwin J. Gale, Sp. Atty., Dept, of Justice, Providence, R.I., with whom Paul F. Murray, U.S. Atty., Providence, R.I., and Gerald E. McDowell, Sp. Atty., Dept, of Justice, Washington, D.C., were on brief, for plaintiff, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
Appellants were convicted of fraudulent possession and sale of counterfeit Federal Reserve Notes and of conspiracy. On appeal, some or all of the appellants challenge the sufficiency of the government’s affidavit supporting its application for a wiretap, alleged multiplicity in the conspiracy count, the trial court’s refusal to reread large amounts of testimony to the jury, and raise the spectre of prejudicial influences on jurors. We affirm.
The facts of this case, read in the light most favorable to the government, see United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978), can be briefly summarized as follows. On November 11, 1976, an undercover Secret Service Agent purchased $3000 in counterfeit $50 dollar bills from appellant Almonte at a tavern in Providence, Rhode Island. On November 18, the agent again met with Almonte and purchased another $7000 in counterfeit $50’s. At that time the agent met Almonte’s colleague, Hanrahan, who was sent outside the tavern to obtain the bills once the deal was firmed up. On December 23, the agent and another Secret Service man met Almonte at a Holiday Inn in Providence. Almonte took the agents to Hanrahan’s home near the tavern, entered the dwelling, and returned with $50,000 in counterfeit $50’s.
In order to determine the source of the counterfeit, the government sought and obtained a wiretap order authorizing interception of calls by Almonte and Hanrahan. Meanwhile, the undercover agent began negotiations for a $400,000 purchase of counterfeit. The wiretap soon showed that Almonte obtained his counterfeit from Corrigan and that Corrigan approved Almonte’s transactions. Specifically, on January 20, 1977, the agent arranged to purchase another $10,000 in counterfeit from Almonte. Almonte immediately called Corrigan to advise him of the deal. The sale took place on January 21, and, as arranged in a recorded phone conversation, Corrigan arrived shortly after the sale to meet Almonte.
On February 11, the agent ordered $300,-000 from Almonte. Almonte immediately called Corrigan, who approved the sale and stated that delivery would be in $100,000 lots. Almonte informed the agent the following morning. The agent expressed extreme displeasure at the staggered delivery, backing out of the deal. Almonte then conferred with Corrigan by phone. Corrigan told Almonte the delivery plans were firm, saying, “we’re not doing anything bigger than that.” That afternoon, Corrigan called Ricapito to advise him of the status of the group’s counterfeit dealings.
After further negotiations between Almonte and the agent, all of which were approved by Corrigan, a deal was struck' on February 20 for the purchase and sale of $150,000 two days later. On February 21, Almonte, Hanrahan, and Corrigan met at Corrigan’s home. That evening, Corrigan telephoned Ricapito to advise him that the two would probably have to meet the following day, assuming that the buyer’s final telephone confirmation was received in the morning.
As agreed, the agent called Almonte on the morning of February 22 to verify the planned purchase. They agreed to meet between 12:30 p. m. and 1:00 p. m. Almonte immediately called Corrigan to indicate that the sale was set. Corrigan told Almonte to have Hanrahan stay at home. Corrigan then called Ricapito to indicate that he would need an additional eleven packages of $10,000 and advised him that the deal was set for one o’clock. Almonte then called Hanrahan and told him to wait at home for Corrigan, who would bring the counterfeit. Hanrahan called Corrigan to confirm his instructions. Corrigan then called Ricapito at his office and arranged to meet there at 11:30 a. m. Ricapito indicated that he had not yet obtained the necessary counterfeit.
At 10:30 a. m., Corrigan left his home carrying a black briefcase and drove off. He was later seen leaving Ricapito’s office. Ricapito then left his office carrying the black briefcase. He took it to the home of his girl friend’s daughter. Ricapito then drove to his girl friend’s beauty shop and placed a brown briefcase in her locked car parked out front. Corrigan then arrived, obtained the keys to the locked car, took out the brown briefcase, and departed.
An hour later, the Secret Service purchased $150,000 in counterfeit from Almonte and Hanrahan at the latter’s residence.
Arrests and searches began. The brown briefcase was at Hanrahan’s home, empty. The black briefcase left with the daughter of Ricapito’s girl friend contained $13,000 in counterfeit and papers belonging to Ricapito. The counterfeit $50’s purchased on November 11 and November 18 were identical to those in the briefcase secreted by Ricapito. All of the.counterfeit $50’s showed the same cutting blade striations, indicating they were produced by the same counterfeiter. With the exception of the $13,000 found in Ricapito’s briefcase, all of the counterfeit bills were packaged in the same way.
Based upon this evidence, the jury returned a verdict of guilty on all counts against all defendants.
The Wiretap Application
Appellants Ricapito and Corrigan attack the decision of a district judge to issue an intercept order, arguing that the Secret Service affidavit supporting the application failed to provide “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be dangerous.” 18 U.S.C. § 2518(1)(c). Appellants unsuccessfully moved to suppress the fruits of the wiretap before the trial court.
We think that the affidavit allows us to “decide [that] the facts set forth in the application were minimally adequate to support the determination made” that an intercept order should issue. United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977). A four month investigation of Almonte and Hanrahan preceded the wiretap application. More important, the affidavit recited Almonte’s indication that the counterfeit was coming from someone higher up in the chain of distribution and provided the further information that following each of his numerous arrests, starting in 1947, Almonte had refused to cooperate in identifying his suppliers. The location of Almonte’s home made physical surveillance to determine his source difficult if not impossible. The allegations setting forth the difficulty in "penetrating beyond the retail level in a counterfeit distribution scheme were nothing like the bare conclusory statements of past experience that we abjured in United States v. DeMuro, 540 F.2d 503, 510 (1st Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Rather, the affiant set forth that the Secret Service had failed to penetrate past the retail level of the very same counterfeiting ring producing the same bills in other cities. It was reasonable to believe that the secretive organization encountered in other cities was the same organization encountered in Providence, and normal investigative techniques were likely to produce the same failures. Finally, analysis of toll call records had failed to identify Almonte’s supplier — a predictable result because there was a central distributor located in Providence.
In sum, the affidavit sufficiently explained why this was an appropriate situation to use wiretaps to locate the source and ultimately the producer of contraband. We are not impressed by appellants’ argument that there was no difficulty in obtaining evidence against Almonte and Hanrahan. An investigation of a counterfeiting ring need not stop with the retailers. United States v. Staino, 358 F.Supp. 852 (E.D.Pa.1973). Finally, appellants’ objection to the use of wiretap evidence against persons not named in the application is frivolous. Conspirators whose conversations are to be intercepted need only be named if “known”. 18 U.S.C. § 2518(1)(b)(iv).
“Multiple” Conspiracies
Appellants Ricapito and Corrigan next argue that their conviction for conspiracy was fatally defective because there was no evidence to link them to the pre-wiretap sales of counterfeit. Appellants rely on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) in arguing further that the unclear and confused evidence of their later involvement was made more convincing by the impermissible implication of their involvement with the earlier sales.
We see the matter differently. As to Corrigan, there was overwhelming evidence from the wiretaps that he was the man controlling Almonte’s operation from the beginning. As to both Corrigan and Ricapito, there was sufficient evidence in the nature of the counterfeit, in its consistent packaging, and in the well coordinated and obviously experienced cooperation of the defendants as a distribution team on February 22, for a jury to find beyond a reasonable doubt that all of the sales were made through the medium of a classic chain conspiracy.
Finally, even if we were not convinced that the evidence showed the involvement of Ricapito and Corrigan from the beginning, we could say without hesitation that “[t]his was not a case involving ‘the dangers of transference of guilt from one to another across the line separating conspiracies, subconscious or otherwise . . . ” United States v. Rivera Diaz, 538 F.2d 461, 465 (1st Cir. 1976) (quoting Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The existence of a single conspiracy having been adequately proven, appellants’ further evidentiary arguments also fail.
Refusal to Reread Testimony
Appellants next argue that the trial court erred in failing to reread the trial transcript to the jury upon their request. After several hours of deliberation the jury asked to rehear all of the taped telephone conversations and the foreman further stated: “[W]e wanted to know February 22 the timing of all the — the timing of all the events that happened that day, February 22.” The trial court conferred with counsel, and all but Corrigan’s counsel objected to fulfilling the jury’s request. The court expressed its concern that setting forth the timing of events on February 22 would require culling the testimony of a large number of witnesses and would, in effect, make the court a fact finder. The court then acceded to the jury’s request to rehear the tapes but denied the request for a review of evidence about “timing”.
As an initial matter, we note that appellate counsel for Ricapito and Corrigan urge the application of a plain error standard since only Corrigan objected to the trial court’s refusal to read back testimony. We see no plain error. The decision to reread testimony rests in the sound discretion of the trial court. United States v. Pollack, 474 F.2d 828, 832 (2d Cir. 1974). In exercising that discretion, the court can and should take into consideration the reasonableness of the jury’s request and the difficulty of complying therewith. Id.; United States v. Price, 447 F.2d 23, 31 (2d Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971). Complying with the request in this case would have required either reading back the testimony of seventeen witnesses or culling the evidence and thereby risking placing undue weight on the evidence reread. See United States v. Baxter, 492 F.2d 150, 175 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 16, 38 L.Ed.2d 38 (1974). We see no error in asking the jury to sort out the facts for itself. Finally, we are unimpressed by appellants’ further argument that acceding to the jury’s specific and limited request for the tapes placed undue importance on that evidence. The trial court merely granted a reasonable and denied an unreasonable request.
Jury Impartiality
Appellant Almonte urges two grounds for reversal: first, that the trial court abused its discretion by refusing to excuse the foreman of the jury when he became aware of a contact between another juror and a witness called by the government; and, second, that the court erred by permitting the jury to interrupt their deliberations and return home for an evening when the foreman’s wife became ill. Finding no merit to either claim we affirm his conviction.
1. Refusal to excuse the foreman
During the course of the trial, the jury foreman asked to speak to the trial judge. The judge met in chambers with the foreman who informed him that juror Alba had told him that when she and another juror, Antonelli, had left the courthouse the day before, they had seen Ricapito’s girl friend, a government witness, wave heartily at Antonelli. Antonelli then remarked that she had recognized the witness when she took the stand as someone who had done her hair five years ago. Alba also told the foreman that the incident had upset her, and asked him to inform the court.
The court then told counsel of the occurrence, and at their suggestion, interviewed Alba in chambers. She confirmed what the foreman had said and stated that other than Antonelli, the foreman and herself, none of the jurors had been told about the incident. The court advised her not to discuss it with anyone. With agreement of all the parties, the court decided that any corrective action would be delayed until the taking of evidence had been concluded at trial. At that time, upon defense motion, the court excused jurors Antonelli and Alba, although “just out of an abundance of caution”, finding “no cause here to remove anybody”. He refused to excuse the foreman as also requested by the defense for “[a]ll the man did was deliver the message, he has no connection, no association with the incident whatsoever.”
As we stated in United States v. Doe, 513 F.2d 709, 711-12 & n. 3 (1st Cir. 1975), if the court finds that a communication between jurors and a third party has occurred, it must determine whether or not it was prejudicial and develop a record that affords “an adequate basis for review”. The district court, however, is endowed with considerable discretion in determining the scope and nature of the investigation needed to evaluate the effect of an impermissible jury contact, see e. g., United States v. Corbin, 590 F.2d 398, at 400-401 (1st Cir. 1979); United States v. Boscia, 573 F.2d 827, 831 (3d Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978); United States v. Parker, 549 F.2d 998, 1000 (5th Cir. 1978); United States v. Doe, supra, 513 F.2d at 712, and we find that the court here properly investigated and remedied the incident which was reported to it.
Appellant’s attempts to depict the waving incident as highly prejudicial and the foreman’s involvement in it as so “intimate” that his continued presence on the jury tainted its deliberations are unpersuasive. The district court’s comment that “the whole thing is a gross exaggeration from beginning to end” strikes us as accurate. No attempt was made by the witness to influence any juror; apparently she and Antonelli did not even speak, and their contact upon leaving the courthouse was completely inadvertent. Compare United States v. Lubrano, 529 F.2d 633, 638 (2d Cir. 1975) and Helmick v. Cupp, 437 F.2d 321, 322 (9th Cir. 1971) with United States v. Harry Barfield Co., 359 F.2d 120, 124 (5th Cir. 1966). The previous relationship between the two, that of hairdresser and customer, was far from a close one and had occurred some five years before the trial. The foreman did no more than calmly relay the incident second-hand to the court. Finally, counsel’s present assertion that “[i]t should have been incumbent on the prosecution' to show that [the foreman] remained unaffected by his involvement in the witness/juror communication”, is an about-face from his position below. The court offered to call in the foreman and ask, “Now that you have delivered the message, will that in any way affect your deliberations in this case at all?”, but counsel requested that he not do so, preferring that the foreman’s attention not be called to the incident again. Given the relatively minor nature of this incident and the foreman’s tangential . involvement in it, the court clearly did not abuse its discretion by refusing to remove him from the jury.
2. Interruption of the jury’s deliberations
Toward the end of the first day of the jury’s deliberations, the court was informed that the foreman’s wife was ill and upset and wanted him home. Although the jury had been sequestered, the court informed counsel that it believed the appropriate response was to allow the jurors to return to their homes for the night and to reconvene in the morning. The defendants objected, noting that an article appeared in the morning paper about counterfeiting in the area in which the defendants allegedly had been active, and moved for a mistrial. The court denied the motion and called in the jury. In response to the court’s questions, the foreman stated that if he were not permitted to return to his home that evening, his concern “would take my concentration away to some degree”, but that if he spent the night at home and returned to court the next day, he had no doubt that he would be able to devote his full concentration to the deliberations. The court then delivered a lengthy and forceful charge to the jury, cautioning them to discuss the case with no one, and to abstain from reading the newspapers either that night or in the morning and from watching television programs or listening to radio broadcasts that “in any way deal with law enforcement”. He further informed them they would be placed under oath in the morning and individually questioned about their adherence to his instructions, and dispersed the jury. The next morning, the court followed that procedure, questioning each juror under oath whether he had discussed the case, read, seen or heard anything about this case or anything involving “criminal laws or criminal prosecution or anything of that nature”. Each juror responded in the negative.
Appellant does note allege any specific prejudice resulting from allowing the jury to separate, nor does he point to any acts of misconduct by the dispersed jurors. Although he notes the supposed existence of a newspaper article on a related subject, there is no suggestion that any of the jurors disregarded the court’s instructions, and contrary to their responses under oath, saw or discussed it. See Cardarella v. United States, 375 F.2d 222, 227 (8th Cir. 1967). In effect, then, appellant urges us to adopt a rule, apparently consistent with the Seventh Circuit, see United States v. Panczko, 353 F.2d 676, 678 (7th Cir. 1965); United States v. D’Antonio, 342 F.2d 667, 670 (7th Cir. 1965), but in opposition to every other court of appeals that has addressed the issue, see, e. g., United States v. Piancone, 506 F.2d 748, 749-51 (3d Cir. 1974); Blackmon v. United States, 474 F.2d 1125, 1126 (6th Cir.), cert. denied, 414 U.S. 912, 94 S.Ct. 252, 38 L.Ed.2d 150 (1973); United States v. Harris, 458 F.2d 670, 674-75 (5th Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972); United States v. Eskridge, 456 F.2d 1202, 1205 (9th Cir.), cert. denied, 408 U.S. 926, 92 S.Ct. 2507, 33 L.Ed.2d 338 (1972); United States v. Siragusa, 450 F.2d 592, 595 (2d Cir. 1971); United States v. Weiss, 431 F.2d 1402, 1407 (10th Cir. 1970); Cardarella v. United States, supra, 375 F.2d at 227, that a court must sequester a jury during its deliberations, particularly if the defendant objects to their separation. We decline to do so and thereby join with the majority of the authorities by holding that it lies within the trial judge’s discretion to decide whether or not to allow the jury members to disburse before they have completed their deliberations and reached a verdict. We see little to commend a rigid per se rule such as the appellant advocates, which in effect would vest control over the decision to sequester in the defendant rather than the trial court.
To the contrary:
“The problems of prejudicial publicity, possibility of harassment or approaches to jurors, the presence or absence of suitable quarters, and difficulties with local transportation to disperse the jury, emphasize factors which are particularly within the competence of the trial judge to evaluate.” United States v. Piancone, supra, 506 F.2d at 750.
There was no abuse of discretion here. After questioning the foreman, the court examined its options and determined, quite properly we believe, that it was better to allow the sequestered jurors to separate for the night than to compel the foreman, who stated that he could not concentrate fully until he returned home and attended his wife’s problems, to continue to deliberate. The court gave thorough cautionary instructions to the jurors and when they returned the next day, questioned each of them under oath about their compliance. Appellant has made no showing whatsoever of any harm occasioned by the separation of the jury, let alone “the gravely prejudicial effect” which he alleges.
Finally, appellant maintains that the “cumulative prejudicial effect” of these two incidents, the contact between a witness and a juror and the court’s refusal to sequester the jury during deliberations, both of which involved the foreman, deprived him of a fair and impartial jury. As we have found no prejudice resulting from either event, their combined effect was insignificant as well.
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Keith Lynn JENKINS, Defendant-Appellant.
No. 87-1797.
United States Court of Appeals, Tenth Circuit.
May 31, 1990.
Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant.
Wayne T. Dance, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge, and BROWN, District Judge.
The Honorable Wesley E. Brown, United States District Judge for the District of Kansas, sitting by designation.
SEYMOUR, Circuit Judge.
In a joint trial, Keith Lynn Jenkins was convicted of multiple counts of possession with intent to distribute and distribution of cocaine and marijuana, 21 U.S.C. § 841(a)(1) (1988) and 18 U.S.C. § 2 (1988); one count of conspiracy to possess and distribute controlled substances, 21 U.S.C. § 846 (1988); multiple violations of the Travel Act, 18 U.S.C. § 1952 (1988); one count of engaging in a continuing criminal enterprise, 21 U.S.C. § 848 (1988); several counts of distribution of a controlled substance to a person less than twenty-one years of age, 21 U.S.C. § 845 (1988); and four counts of income tax evasion, 26 U.S.C. § 7206(1) (1988). Criminal forfeiture orders were obtained against Jenkins’ property in the same proceeding under 21 U.S.C. § 853 (1988). We are not persuaded by the various issues Jenkins raises on appeal, and we therefore affirm his conviction on all counts.
I.
BACKGROUND
This case involves a large Utah-based cocaine and marijuana distribution network. Jenkins was originally named in a ninety-two count indictment which charged six defendants with conspiracy, multiple substantive drug violations, and a variety of associated crimes. The government filed a ninety-six count superseding indictment which added tax evasion charges against Jenkins. Among the numerous charges, count one alleged a single conspiracy by Jenkins and the other five defendants to possess and distribute controlled substances, and count two charged Jenkins with a managerial, supervisory or organizer’s role in concert with at least five other persons, as part of a continuing criminal enterprise. See 21 U.S.C. § 848.
Two of the six defendants pled guilty before trial, and the four remaining defendants began trial before one jury. Two weeks into trial, the attorney for defendant Michael Patrick Doran became sick and a mistrial was declared as to Doran. The substantive criminal counts and the criminal forfeiture actions against Jenkins, Craig William McLachlan, and James Arthur Mann went to the jury.
The evidence against Jenkins at trial consisted primarily of the testimony of lesser participants in the drug distribution system who testified in exchange for grants of immunity. Jenkins did not testify. The government’s proof established generally that from approximately 1980 through 1983, Jenkins regularly imported or obtained delivery in Utah of shipments of up to 150 pounds of marijuana, usually purchased from co-defendant Michael Doran in Arizona. Jenkins would distribute this marijuana to or through various smaller-scale wholesalers and retailers in the Salt Lake City and Utah County area. In addition, Jenkins would import or obtain delivery of cocaine, in quantities of one-quarter pound up to three kilograms. Jenkins often purchased and distributed this cocaine for resale in partnership with co-defendant Craig McLachlan, at least until an apparent “rift” developed between them in October 1981. Profits from these sales were invested into real estate, aircraft, businesses, money market funds, and bank accounts. These assets were the subject of the criminal forfeiture proceedings held jointly with the trial on the substantive criminal charges. Jenkins did not object to the unitary treatment of the substantive criminal counts and the forfeiture actions.
The jury found Jenkins guilty of the great majority of the counts against him. Forfeiture orders were entered against him contemporaneously with the return of the verdict on the criminal counts. Jenkins was sentenced to twenty years on the continuing criminal enterprise conviction, and the sentence on the conspiracy charge was vacated as a lesser included offense. The sentences imposed on the various substantive drug charges were to run concurrently, while a three-year tax evasion sentence was to run consecutively.
On appeal, Jenkins asserts insufficient evidence to convict on the continuing criminal enterprise count, a variance between the conspiracy charge and the proof of conspiracy at trial, improper introduction of prejudicial and irrelevant evidence and of other wrongful acts under Fed.R.Evid. 404(b), erroneous denial of a severance motion, improper use of a Fed.R.Crim.P. Rule 16(d)(2) sanction resulting in inability to use a prior inconsistent statement to impeach, failure to bifurcate the forfeiture proceedings from the guilt phase of Jenkins’ criminal trial, and grand jury abuse.
II.
A. Continuing Criminal Enterprise
Jenkins argues that the jury had insufficient evidence to convict him on the continuing criminal enterprise charge. Evidence is sufficient to support a criminal conviction if, viewing all the evidence most favorably to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Apodaca, 843 F.2d 421, 425 (10th Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).
Conviction on a continuing criminal enterprise charge requires (1) a felony violation of a drug law contained in the Controlled Substance Act, 21 U.S.C. §§ 801 et seq. (1988); (2) constituting part of a continuing series of such violations; (3) undertaken in concert with five or more other persons; (4) with respect to whom [the defendant] occupies a position of organizer, supervisor, or any other position of management; and (5) from which [the defendant] obtains substantial income or resources. See 21 U.S.C. § 848(c) (1988); see also United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988). Jenkins maintains that it was he who took orders from most of the persons with whom he was involved, and that the evidence does not enable one to specify five persons over whom he exercised the requisite managerial, supervisory, or organizing authority. We disagree.
The statutory terms “organizer,” “manager,” and “supervisor” have nontechnical, “everyday meanings.” See Apodaca, 843 F.2d at 425-26; United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). Section 848’s use of the indefinite article when describing “a position of organizer” or “a supervisory position or any other position of management” contemplates that a given network may have many persons in authority. Thus, the defendant need not be the dominant organizer or manager of the enterprise; he need only occupy some managerial position with respect to five or more persons. See Apodaca, 843 F.2d at 426 (citing cases). Moreover, “[t]he defendant's relationships with the other persons need not have existed at the same time, the five persons involved need not have acted in concert at the same time or with each other, and the same type of relationship need not exist between the defendant and each of the five.” Id. While proof of a buyer-seller relationship alone is insufficient to establish a managerial role, id., additional evidence of formal or informal authority or responsibility respecting a purchaser’s conduct may suffice, see United States v. Jones, 801 F.2d 304, 309-10 (8th Cir.1986) (requisite role evidenced by setting terms and method of transaction, directing wholesale purchaser as to manner of sale, furnishing financial and legal help, and supplying directions and/or training to subordinate wholesalers); see also United States v. Ray, 731 F.2d 1361, 1367 (9th Cir.1984) (not necessary to show defendant is able to control those whom he or she organizes).
In the present case, the evidence reflects that Jenkins participated at different times as a partner, rival, or arguably even as a subordinate of persons with whom he did business. But simply because Jenkins was not the “king pin” does not mean that he did not have his share of minions. Cf. United States v. Becton, 751 F.2d 250, 255 (8th Cir.1984) (irrelevant that defendant is subject to supervision of superiors), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).
Kim Barker and Dale Lowder, for example, sometimes helped Jenkins store large quantities of marijuana at their home in exchange for a discount on the drug, see rec., vol. 13, at 45-54, and helped Jenkins obtain a drug delivery, see id. at 205-07. Jenkins regularly fronted them drugs, see id. at 65-78, 81-84, threatened their children when payment was late, see id. at 216, made Lowder quit-claim his house as security, see id. at 135-37, and directed when and how to make payment, see id. at 152. Finally, Jenkins told Lowder to whom not to sell. See id. at 210-11.
Curtis Slack helped broker several of Jenkins’ cocaine purchases in Florida. See rec., vol. 16, at 518-35, 553-67. Most importantly, Slack couriered the drug for Jenkins from Florida to Utah, see id. at 579-82, after following Jenkins’ instructions on how to package it, see id. at 560. Finally, Jenkins bailed Slack out of jail after his arrest for couriering the drugs. See id. at 596.
Brian Smith obtained marijuana from Jenkins on credit. He couriered Jenkins’ purchases of marijuana from Arizona to Utah, see rec., vol. 23, at 1680-83, and would then store the marijuana for Jenkins at his home. Guy Robertson acted as Jenkins’ agent in marijuana transactions in Jenkins’ absence. See rec., vol. 23, at 1533, 1599. Finally, Wendell and Sherry Olsen arranged for the storage of marijuana for Jenkins when he needed it, see id. at 1530, 1537, followed his advice concerning price-setting, see id. at 1603, and complied with Jenkins’ request to gain introductions for new sales contacts, see id. at 1546-47. Based on this evidence, a rational trier of fact could easily conclude beyond a reasonable doubt that Jenkins occupied a managerial position as defined in the cases at least as to these seven persons. See Apodaca, 843 F.2d at 427. We therefore affirm the conviction on the continuing criminal enterprise count.
B. Evidentiary Rulings
1. Testimony concerning McLachlan’s violence
Over the relevancy objection of Jenkins and other co-defendants, the district court admitted testimony of certain violent acts of co-defendant McLachlan. For example, there was testimony that Mc-Lachlan tried to strike an employee of his nightclub with a sledgehammer, and that he used the hammer to damage the side of his adversary’s car. The jury also heard evidence that McLachlan convinced the girlfriend of Curtis Slack to pose for sexually explicit photographs in return for legal help for her boyfriend, who had been arrested while transporting cocaine allegedly ordered by Jenkins. Finally, on two occasions testimony revealed that McLachlan had threatened individual employees of his club, once with a gun.
Jenkins argues that the probative value of this evidence as to McLachlan is substantially outweighed by the possibility of unfair prejudice to Jenkins. See Fed.R. Evid. 403. In considering this question, we first take note of the broad discretion given the trial court in a Rule 403 balancing analysis. See United States v. Cuch, 842 F.2d 1173, 1175 (10th Cir.1988). We also note that Jenkins raised no Rule 403 objections when the evidence was introduced below. Finally, the trial court twice gave cautionary instructions to the jury immediately after the testimony, admonishing jury members that the testimony had “nothing to do with Mr. Jenkins.” Rec., vol. 18, at 1045-46; see also id., vol. 19, at 1184.
We conclude that Jenkins was not unfairly prejudiced by the testimony. Little danger existed that the jury could have confused McLachlan with Jenkins or that the testimony concerning McLachlan would unfairly bias the jury against Jenkins. In fact, Jenkins was acquitted on nine of the fifty counts against him that went to the jury. Any danger of unfair prejudice was ameliorated by the limiting instructions. See United States v. Pinto, 838 F.2d 426, 434 (10th Cir.1988) (special limiting instruction enables jury to compartmentalize the evidence as to each of the defendants). Accordingly, we affirm the trial court’s evi-dentiary rulings concerning McLachlan’s activities.
2. Bad acts concerning Doran
The district court also admitted evidence of co-defendant Michael Patrick Do-ran’s prior drug activities under Fed.R. Evid. 404(b) as probative of Doran’s motive, intent, preparation, plan, knowledge, and identity regarding the drug conspiracy. Jenkins argues that admission of this Rule 404(b) evidence was not “necessary to bolster the government’s case against Doran,” Opening Brief at 26, and that the jury would unfairly attribute these acts to Jenkins, whom the government alleged was supervising Doran.
The validity of the introduction of this evidence against Doran has already been ruled upon by this court. See United States v. Doran, 882 F.2d 1511, 1523-25 (10th Cir.1989). We held that the evidence was properly admitted to show that Doran intended to enter into the conspiracy and knew the nature of it. Id. at 1524. We did not consider the issue of unfair prejudice against co-defendant Jenkins, however.
Immediately following the admission of the evidence, the trial court instructed the jury that “[t]his testimony is not to be considered by you as it relates to any of the charges ... against Jenkins_[Y]ou must not consider this evidence as it relates to the charges against any of the other three defendants in this case.” Rec., vol. 16, at 22. We believe that this cautionary instruction adequately safeguarded Jenkins from any prejudicial effect the Rule 404(b) testimony may have had. See Pinto, 838 F.2d at 434; see also United States v. Williams, 897 F.2d 1034, 1037-38 (10th Cir.1990) (presumption of effectiveness of cautionary instruction).
3. Denial of opportunity to impeach with a prior inconsistent statement
A major prosecution witness against Jenkins was Curtis Slack, who testified that he couriered large quantities of cocaine from Florida for Jenkins. During cross examination, Jenkins sought to introduce a document purportedly containing a statement Slack made to a lawyer to the effect that the cocaine he transported did not belong to Jenkins. The trial court denied Jenkins the opportunity to use the document or its contents because it had not been provided to the government under the magistrate’s reciprocal discovery order. See rec., vol. 2, doc. 235 at 1; see also Fed.R.Crim.P. 16(b).
Jenkins argues on appeal that the court abused its discretion by refusing to admit the document. The government responds that the court’s choice of sanction was well within its discretion. The relevant rule provides:
“Failure to Comply with a Request
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.”
Fed.R.Crim.P. 16(d)(2) (emphasis added). Jenkins maintains that, given the importance of Slack’s testimony to several substantive charges and to the continuing criminal enterprise charge, the trial court should have continued the trial or permitted an inspection instead of refusing to admit the evidence. The record does not contain a copy of the document. Accordingly, we are unable to rule on this issue. See generally Moore v. Subaru of Amer-ica, 891 F.2d 1445, 1448 (10th Cir.1989) (deferral to trial court appropriate where record on appeal is insufficient to substantiate general allegations of error).
C. Severance
The district court denied Jenkins’ pretrial motion to sever, as well as his mid-trial motion for mistrial or severance arising out of the court’s admission of Mc-Lachlan’s violent acts. Jenkins maintains that these denials were an abuse of the trial court’s discretion, resulting in actual prejudice. See Williams, 897 F.2d at 1037 (defendant must show specific prejudice to warrant reversal of denial of severance motion); United. States v. Wright, 826 F.2d 938, 945 (10th Cir.1987) (reversal for denial of severance motion must be based on abuse of discretion resulting in actual prejudice); see also United States v. Hernandez, 829 F.2d 988, 990 (10th Cir.1987) (defendant’s burden to show abuse of discretion is “difficult;” “strong showing of prejudice” required), cert. denied, 485 U.S. 1013, 108 S.Ct. 1486, 99 L.Ed.2d 714 (1988).
Jenkins argues that he was prejudiced by the admission of evidence reflecting McLachlan’s violent nature due to its purported spillover effect. Our analysis above demonstrates that Jenkins was unable to show sufficient danger of prejudice arising from this testimony in a Fed.R. Evid. 403 context, particularly where the district court gave appropriate cautionary instructions. Our prior analysis is disposi-tive of the severance issue, since Jenkins’ burden in the severance context is the heavier one of a strong showing of actual prejudice. See Williams, 897 F.2d at 1037 (severance not warranted based on allegation of spillover effect upon co-conspirator defendant).
Moreover, the joint trial of Mann, Doran, Jenkins, and McLachlan substantially advanced the judicial-efficiency rationale behind the rules encouraging joinder of defendants. See Fed.R.Crim.P. 8(b). Jenkins and his co-defendants were jointly indicted and faced common conspiracy charges. See Wright, 826 F.2d at 945 (individual conspirators should be tried together); United States v. Rinke, 778 F.2d 581, 590 (10th Cir.1985) (persons jointly indicted should be tried together). Jenkins and Mc-Lachlan were also alleged to have worked together as partners, leading to six joint charges on substantive counts. Given Jenkins’ inability to show prejudice, as well as a substantial factual overlap in the charges against Jenkins and McLachlan, the trial court acted within its discretion in denying a severance.
D. Bifurcation
In a separate indictment, the government initiated extensive criminal forfeiture proceedings under 21 U.S.C. § 853 against property belonging to Jenkins. Evidence pertaining to the forfeiture issues was admitted during the guilt phase of Jenkins’ trial, and the jury returned its verdict the same day on both the criminal counts and the forfeiture of his property. Jenkins did not move below for separate jury consideration of the forfeiture issue after the guilt phase of the trial, but now asserts that it was plain error for the trial court not to require the jury to hear the case in two phases.
We have not addressed the question of when, if ever, a jury should be required to determine a defendant’s guilt before it is allowed to consider evidence and/or arguments pertaining to forfeiture. Other circuits have varying views. In United States v. Sandini, 816 F.2d 869 (3d Cir.1987), the district court held a partially bifurcated trial, in spite of the defendant’s request for a fully bifurcated proceeding. The court required all evidence relating to forfeiture to be presented to the jury during the guilt phase, and limited the forfeiture phase of the trial to arguments of counsel and jury instructions relating to that issue. The Third Circuit recognized that the trial court’s procedure presented the defendant with the Hobson’s choice of foregoing testifying to protect his property from forfeiture or waiving of his Fifth Amendment privilege not to testify at his criminal trial. The court observed that a defendant’s position is exacerbated by the rebuttable presumption in the forfeiture statute favoring the government, and the court pointed out that “the right of rebuttal may be illusory when made contingent on waiving the privilege not to testify during trial.” Id. at 874. Accordingly, the court exercised its supervisory power over the conduct of criminal trials to require complete bifurcation of in personam criminal forfeiture proceedings from the guilt phase of a criminal trial. Id.
In United, States v. Perholtz, 842 F.2d 343 (D.C.Cir.) (per curiam), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988), the defendant’s pretrial request for separate proceedings on RICO forfeiture charges, see 18 U.S.C. § 1963(a) (1988), was denied. After concluding that a wholly unitary proceeding was consistent with due process, the court declined to adopt a judicially-crafted procedural rule requiring any bifurcation whatsoever, much less respecting the taking of evidence. Id. at 367-68.
The Ninth Circuit in United States v. Feldman, 853 F.2d 648 (9th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989), adopted a more fact-bound approach to the problem. After the jury returned a guilty verdict, but before it retired to deliberate on the special verdict required in forfeiture proceedings, the defendant there requested a separate eviden-tiary hearing on RICO forfeiture issues. The district court denied the request. On appeal, the court held that “[ujnder some circumstances a single procedure may be unfair, where for example the evidence is very complex, there are evidentiary difficulties, or testimonial privileges are clearly implicated.” Id. at 662. In other sitúa-tions, however, evidence of guilt may satisfy forfeiture requirements and a single procedure would not be prejudicial. The court noted that trial courts “should bifurcate forfeiture proceedings from ascertainment of guilt, requiring separate jury deliberations and allowing argument of counsel.” Id. Bifurcation on the taking of evidence was left to trial court discretion, although “[i]f the defendant can show ... that a hearing is required on the extent of his or her assets subject to forfeiture, the court should allow evidence on the issue.” Id.
We appreciate the unfair dilemma, described in Sandini, that a defendant faces when the jury hears evidence pertaining to forfeiture and criminal guilt in one sitting. The dilemma disappears, however, if the defendant does not intend to testify concerning the forfeiture. In such a case, it works no harm upon the defendant to emphasize the convenience and economy for the court, subpoenaed witnesses, and others involved by allowing evidence to be taken in a single proceeding. We hold, therefore, that the responsibility rests on the defendant and counsel to make the trial court aware of a desire to testify on the forfeiture issues. If no such request is made, the trial court and the government are entitled to assume that evidence concerning guilt and forfeiture may be heard together.
In the present case, Jenkins argues that had the proceedings been bifurcated he “may well have desired to take the stand in his own behalf.” Opening Brief at 40. In contrast to the defendants in Sandini, Perholtz, and Feldman, Jenkins did not express at trial an intention to testify, nor did he request bifurcated proceedings, or advert to the dilemma described in Sandini. Consequently, the trial court was entitled to assume that Jenkins did not desire to testify concerning forfeiture, and the failure to require the jury to determine Jenkins’ guilt before permitting it to hear evidence and/or arguments pertaining to forfeiture was not plain error.
Jenkins also argues that the reading of jury instructions on forfeiture together with the instructions as to guilt created a real danger that the jury may have confused the differing burdens of proof. Only a preponderance of the evidence is required to establish the rebut-table presumption in the forfeiture statute, while proof beyond a reasonable doubt is, of course, required to convict on the substantive criminal counts. While we agree with the Ninth Circuit in Feldman that the preferable procedure would have been to instruct the jury separately concerning forfeiture after return of the verdict on guilt, Jenkins failed to request any bifurcation of the guilt phase from the forfeiture phase of the trial. Because a cautionary instruction was given directly addressing the possibility of this type of confusion, the court did not commit plain error when it gave the instructions in a single reading. See United States v. Culpepper, 834 F.2d 879, 883 (10th Cir.1987) (plain errors are those that “seriously affect the fairness, integrity or public reputation of judicial proceedings”).
E. Grand Jury Abuse
Finally, Jenkins maintains that the trial court erred in not dismissing the indictment for grand jury abuse. After the government filed its superseding indictment, the grand jury heard additional testimony concerning Jenkins from several witnesses, including his mother. No subsequent superseding indictment was filed. Jenkins asserts that the government was attempting to obtain more evidence to strengthen its pending case against him, an improper use of the grand jury. See United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979). He argues that the lower court erred in adopting the magistrate’s conclusion that the primary purpose of the testimony was to investigate new charges, with only an incidental effect on the pending prosecution.
We said in Gibbons that the grand jury process is abused when the prosecutor uses it “for the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery, although this may be an incidental benefit.” Id. In two in camera hearings, the magistrate found that Jenkins had failed to demonstrate this type of abuse. Jenkins’ conclusory statements in his brief and our review of the record provide us with no reason to disturb that finding.
Moreover, Jenkins has not shown how the testimony before the grand jury amounted to prejudice. See Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (dismissal of indictment for prosecutorial misconduct before grand jury subject to harmless error analysis). Jenkins does not argue that the grand jury testimony was employed against him in any fashion or that it had any effect whatsoever on the fairness of his trial based on the indictment issued before any of the purported abuse occurred. His claim of grand jury abuse must therefore fail.
Jenkins’ conviction is AFFIRMED.
. Doran was retried separately and convicted of seven counts upon a separate, superseding indictment. On appeal, Doran’s conviction on seven counts was affirmed as to five counts, and was reversed on Speedy Trial Act grounds as to the two remaining counts, which had originated in the initial indictment. See United States v. Doran, 882 F.2d 1511 (10th Cir.1989).
. The definition of a continuing criminal enterprise in the version of the statute in effect at the time these offenses occurred was found at 21 U.S.C. § 848(b). The identical definition occurs in the current version at 21 U.S.C. § 848(c).
. Jenkins complains for the first time in his Reply Brief that he was never specifically informed either in the indictment or the bill of particulars of the persons whose activities he allegedly organized, managed, or supervised. Although he requested that the government be required to supply the information, he did not appeal to the district court the denial of his motion by the magistrate.
Jenkins also tangentially argues for the first time in his Reply Brief that the jury could have disagreed on which five people satisfied the element of the continuing criminal enterprise count, thereby violating the requirement of unanimity in the jury verdict. See Fed.R.Crim.P. 31(a); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (five justices agree on implicit Sixth Amendment right to unanimous verdict in federal criminal trials). Jenkins did not identify the unanimity issue in the Statement of Issues in his Opening Brief. Moreover, raising the issue only in the Reply Brief affords the government no opportunity to address it. Given the complexity of the question, we decline to consider it without adequate briefing from both sides. See Fed.R.App.P. 28(a)(2), (4) (requiring statement of issues in briefs and legal argument respecting the issues presented on appeal); United Transp. Union v. Dole, 797 F.2d 823, 827 (10th Cir.1986) (issue may be abandoned or waived by inadequate development in the briefs).
. Jenkins vigorously argues in his Opening Brief that the indictment charging his involvement in a single drug conspiracy varied from what Jenkins characterizes as proof of multiple conspiracies adduced at trial. In his Reply Brief, however, he acknowledges that the action of the court in vacating his conspiracy sentence as a lesser included offense of the continuing criminal enterprise charge makes the variance issue significant only if the continuing criminal enterprise conviction is reversed on appeal. Our affirmance of the CCE issue thus obviates the need to discuss the variance issue.
To the extent the factual contentions underlying the variance argument have relevance to other issues in our discussion, we will discuss them separately.
. Jenkins also argues that this evidence was character evidence under Fed.R.Evid. 404(b). We do not agree. The evidence was admitted not to prove action in conformity with a criminal character, but rather to show McLachlan’s involvement in Slack’s cocaine delivery in one instance, and to show the duration of McLach-lan’s involvement in overt acts underlying the cocaine conspiracy through relations with employees in his club in the other instances. See United States v. Rodrequez, 859 F.2d 1321, 1326-27 (8th Cir.1988) (violent acts of conspirator in drug ring related to birth and nature of conspiracy and not Rule 404(b) evidence), cert. denied, — U.S. —, 109 S.Ct. 1326, 103 L.Ed.2d 594 (1989). In any event, we question Jenkins’ standing to object to evidence admitted against a co-defendant where he suffers no prejudice as a result.
. Jenkins’ counsel represented in the Opening Brief at 31 that she would supplement the record upon receipt of the document from a co-defendant’s counsel. To our knowledge, the record was never supplemented. Even if we were to rule, the trial court appears to have properly exercised its discretion. Counsel for Jenkins was aware of the document at least some days prior to its attempted introduction, but never apprised the government of its existence until the moment its admission was sought to impeach. Such tactics run directly contrary to the spirit of the mutual discovery order. See Fed.R.Crim.P. 16(c) (requiring prompt notification of adversary’s counsel upon discovery of additional evidence or material previously requested or ordered).
. Jenkins maintains in his Reply Brief that the proof at trial revealed multiple, separate conspiracies as to which both McLachlan and Jenkins were not common members. Even if we were to accept that proposition, however, the evidence did show that Jenkins and McLachlan were partners in a single distribution system at least up to October, 1981, when the rift occurred between them.
. The court described the dilemma as follows:
"A criminal defendant has the right to decline to testify at trial. He also may insist that his property not be taken without due process of law_[T]he defendant’s right to retain property arguably not subject to forfeiture should not be compromised or defeated by his decision to stay off the witness stand during the guilt phase of the trial.”
816 F.2d at 873.
.21 U.S.C. § 853(d) provides a rebuttable presumption that property of a person is subject to forfeiture when the person is convicted of a felony under the Controlled Substance Act, and where the government shows by a preponderance of the evidence that the property was acquired during the period of the violation and that no other likely source for funds exists.
. The court in Perholtz concluded that the Supreme Court’s decision in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated in part on other grounds, 408 U.S. 941-42, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972), foreclosed a due process challenge to a unitary proceeding in the criminal forfeiture context. See 842 F.2d at 367-68. In McGautha, a defendant in a capital case argued that the Ohio state court’s procedure determining guilt and punishment in a single trial with a single verdict offended the due process clause by compelling the defendant to exercise his rights of allocution during trial to avoid the death sentence. The Court found the unitary procedure consistent with due process, reasoning first that the prospect of losing the right of allocution before one’s sentence does not amount to sufficient compulsion to testify, id. at 217, and second that Ohio had no obligation to allow the defendant to speak concerning punishment free of adverse consequences on guilt. Id. at 220.
The court in Perholtz found this reasoning persuasive in the criminal forfeiture context, since " ‘forfeiture under RICO is an in personam penalty designed as part of the punishment for the criminal offense committed’ ’’. 842 F.2d at 367 (quoting United States v. Kravitz, 738 F.2d 102, 106 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985)). The court in United States v. Sandini, 816 F.2d 869, 874 (3d Cir.1987), found it unnecessary to decide the constitutionality of a unitary proceeding involving the in personam criminal forfeiture statute for drug trafficking. The court did note, however, that both the self-incrimination clause and the prohibition against governmental deprivation of property without due process were implicated. Id. at 873. The Ninth Circuit in United States v. Feldman, 853 F.2d 648, 661 (9th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989), also declined to rule on the constitutionality, although it remarked cryptically that failure to bifurcate is "not necessarily unconstitutional.” Id. Jenkins does not argue that bifurcation is constitutionally required. Thus, as in Sandini and Feldman, our discussion here has no bearing on the constitutional issues a unitary proceeding may raise.
. The court in Feldman gave as an example a forfeiture action against a RICO enterprise, where a finding of guilt on criminal RICO charges satisfies all the elements necessary to forfeit the enterprise itself. See Feldman, 853 F.2d at 662; 18 U.S.C. § 1963(a) (1988).
. The District of Columbia Circuit in Perholtz flatly rejected the defendant’s request for bifurcation, even where he requested it below. See 842 F.2d at 367. Perholtz involved RICO forfeiture under 18 U.S.C. § 1963(a) (1988), while the present case involves criminal forfeiture under 21 U.S.C. § 853 (1988). Since no similar request was made here, we need not decide whether the result in Perholtz is inconsistent with our suggested approach in the drug distribution forfeiture context. To the extent that the holding in Perholtz applies to forfeitures generally, however, we question its complete disregard of the potential dilemma created in a unitary proceeding.
. Jenkins does not challenge the use of the preponderance standard in the ultimate determination of whether property is subject to forfeiture pursuant to 21 U.S.C. § 853 (1988). We note the existence of some disagreement on this issue, see, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560, 1576-77 & n. 10 (9th Cir.1989), but we need not address it here.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_usc1sect
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5313
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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 31. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, Cross-Appellant, v. Thomas MICKENS, Anthony Jacobs, Shelby Kearney, Defendants-Appellants, Bettina Jacobs Celifie, Defendant-Appellant, Cross-Appellee.
Nos. 157-161, Dockets 90-1061 to 90-1064 and 90-1097.
United States Court of Appeals, Second Circuit.
Argued Oct. 25, 1990.
Decided Feb. 26, 1991.
John L. Pollok, New York City (Michael H. Gold, Susan C. Wolfe, Hoffman & Pol-lok, New York City of counsel), for defendant-appellant Mickens.
Robert L. Ellis, New York City, for defendant-appellant Kearney.
Georgia J. Hinde, New York City (Vivian Shevitz, New York City of counsel), for defendant-appellant Jacobs.
Chris P. Termini, Melville, N.Y. (Scalzi & Nofi, of counsel), for defendant-appellant, cross-appellee Celifie.
Kirby A. Heller, Asst. U.S. Atty., E.D. N.Y. (Andrew J. Maloney, U.S. Atty., Matthew E. Fishbein, Susan Corkery, Asst. U.S. Attys., E.D.N.Y., of counsel), for ap-pellee, cross-appellant.
Before MESKILL and ALTIMARI, Circuit Judges, and METZNER, District Judge.
The Honorable Charles M. Metzner, District Judge of the United States District Court for the Southern District of New York, sitting by designation.
ALTIMARI, Circuit Judge:
Defendants-appellants Thomas Mickens, Anthony Jacobs, Shelby Kearney, and Bet-tina Jacobs Celifie appeal from judgments of conviction, entered in the United States District Court for the Eastern District of New York (Thomas C. Platt, Chief Judge).
Following a four-month jury trial, Mick-ens was convicted of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1988); conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 (1988); four counts of income tax evasion, in violation of 26 U.S.C. § 7201 (1988); one count of filing a perjurious income tax return, in violation of 26 U.S.C. § 7206(1) (1988); eight counts of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i) & (ii) (1988); and, one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3) (1988). Shelby Kearney and Bet-tina Jacobs Celifie were each convicted of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and one count of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i). Celifie was also convicted of one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3). Anthony Jacobs pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; and, two counts of distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).
On appeal, defendants-appellants Mick-ens, Kearney, and Celifie contend that comments made by the district court during trial deprived them of their constitutional right to a fair trial. They also challenge the court’s denial of a motion to suppress certain evidence, its rulings on various evi-dentiary questions posed during the course of the trial, and its instructions to the jury regarding the elements of a section 1956 violation. Moreover, they question the constitutionality of the currency reporting requirements of 31 U.S.C. § 5313 (1988). Defendant-appellant Jacobs appeals from his sentence of imprisonment. He contends that, in calculating his offense level, the district court improperly attributed to him the entire quantity of narcotics for which Mickens was found responsible. The government cross-appeals from the district court’s decision to downwardly depart in sentencing defendant-appellant Celifie.
For the reasons set forth below, the judgments of the district court are affirmed in part, reversed in part, and remanded.
BACKGROUND
Between 1984 and 1988, defendant-appellant Thomas Mickens directed a lucrative cocaine distribution network in Queens, New York. At trial, two law enforcement officers testified about numerous undercover cocaine purchases from individuals identified as Mickens’ underlings. For example, on two separate occasions undercover officer Austin Fields purchased cocaine from defendant-appellant Anthony Jacobs, a reputed “lieutenant” in the Mickens organization. On another occasion, surveillance agents spotted Mickens in the vicinity of a narcotics transaction between undercover Officer Terance Miller and another Mick-ens’ associate, George Jenkins. Officer Miller also purchased cocaine directly from Mickens while both men were seated in an undercover police car.
In addition to the direct evidence of narcotics activity, the prosecution presented evidence of Mickens’ lavish spending. The testimony of several automobile salesmen and insurance agents connected Mickens to the purchase of eighteen automobiles, costing a total of approximately $556,000. Trial evidence also established that Mickens purchased some sixteen properties, including commercial property in Queens, a $730,-000 residence in Dix Hills, New York, a residence in Miami, Florida, and a condominium in California. Mickens’ former attorney testified that he assisted Mickens in purchasing several properties using cash and money orders. He also testified that he helped Mickens launder money by preparing contracts and closing documents that significantly understated the properties’ actual purchase prices.
Additional evidence of Mickens’ automobile and real estate purchases was obtained during a warrant-authorized search of the Dix Hills residence. The warrant permitting the search was obtained on the basis of observations made by FBI agent Nerisa Pilafian during a “protective sweep” of the premises in connection with Mickens’ arrest. Mickens moved before the district court to suppress the evidence obtained from the Dix Hills residence, claiming that Agent Pilafian’s protective sweep was not justified by the circumstances of the arrest. This motion was denied.
Many of Mickens’ automobile and real estate purchases were accomplished through the use of nominees, including defendants-appellants Kearney and Celifie. For example, trial evidence established that Kearney, who was Mickens’ girlfriend, acted on Mickens’ behalf in the purchases of property in Hempstead, New York and the residence in Dix Hills, New York. The prosecution also presented evidence that Bettina Jacobs Celifie acted as Mickens’ nominee in purchasing the California condominium, as well as a $133,350 yacht.
Following a four-month jury trial, defendant-appellant Mickens was convicted of, inter alia, conspiracy to distribute and to possess with intent to distribute cocaine, conspiracy to defraud the United States, income tax evasion, and money laundering. He was sentenced to an aggregate term of imprisonment of thirty-five years, a fine of $1,000,000, and a special assessment of $800. Defendants-appellants Kearney and Celifie were each convicted of conspiracy to defraud the United States and money laundering, and Celifie was also convicted of structuring a financial transaction as part of a pattern of illegal activity. Kearney was sentenced to concurrent five-year terms of imprisonment on each count, to be followed by two years’ supervised release, a fine of $200,000, and a $100 special assessment. Celifie was sentenced, pursuant to a downward departure, to concurrent eighteen-month terms of imprisonment on each count, to be followed by two years’ supervised release, and a $150 special assessment. Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, was sentenced to 327 months’ imprisonment, to be followed by a five-year term of supervised release, and a special assessment of $200. This appeal and cross-appeal followed.
DISCUSSION
I. The Unfair Trial Claim.
Defendants-appellants Mickens, Kearney and Celifie claim that the district court’s admonitions to counsel and questions of witnesses deprived them of a fair trial. Defendants-appellants claim that the court “poisoned the courtroom atmosphere and prevented a fair trial.” We disagree.
While many of the court’s remarks were unfortunate, their cumulative effect was not a deprivation of the right to a fair trial. A trial judge “ ‘need not sit like a “bump on a log” throughout the trial.’ ” United States v. Bejasa, 904 F.2d 137, 141 (2d Cir.) (quoting United States v. Pisani, 773 F.2d 397, 403 (2d Cir.1985)), cert. denied, — U.S. -, 111 S.Ct. 299, 112 L.Ed.2d 252 (1990). As this Court recently stated:
Judges, being human, are not immune to feelings of frustration at the occasional antics or inartfulness of attorneys or impatience at the evasiveness of witnesses. Such feelings may give vent to remarks which, judged in isolation from the totality of the record through the dispassionate looking glass of hindsight, “would better have been left unsaid.” Yet, analysis of such comments, taken out of context of the entire record, is not the proper basis for review. Rather, we must make “an examination of the entire record,” in order to determine whether the defendant received a fair trial.
Id. at 141 (quoting United States v. Robinson, 635 F.2d 981, 985 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981), and United States v. Mazzilli, 848 F.2d 384, 389 (2d Cir.1988)). Viewing the record in the present case in its entirety, it is clear that defendants-appellants received a fair trial. The district court’s occasional intemperate remarks did not substantially taint defendants-appellants’ trial. It must be noted that these remarks were provoked to some extent by one defense counsel’s despicable verbal assault on the court. That attorney’s conduct was so egregrious that, after verdict, the court advised counsel that it intended to file a complaint with the Grievance Committee of the Eastern District of New York. Moreover, any possible prejudice to defendants-appellants was cured by the court’s cautionary instruction. See United States v. Bejasa, 904 F.2d at 141; United States v. Gurary, 860 F.2d 521, 527 (2d Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989).
II. The Motion To Suppress.
Defendant-appellant Mickens argues that the district court erred in denying his motion to suppress evidence obtained in the warrant-authorized search of the Dix Hills residence. He claims that the warrant was issued on the basis of information gathered during an improper “protective sweep” of the residence, conducted by FBI agent Nerisa Pilafian in the process of arresting Mickens. Again, we disagree.
Law enforcement officers may conduct a protective sweep of a residence during the course of an arrest if they possess “a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 1099-1100, 108 L.Ed.2d 276 (1990). This standard was satisfied in the present case. The arresting officers had reason to believe that defendant-appellant Kearney and her mother—both of whom resided in the house—were on the premises. Moreover, as the district court found, "agents had reason to believe that Mickens was a drug dealer who was known to be violent and who travelled with others.” Thus, Agent Pilafian had a reasonable basis to conduct the protective sweep of the Dix Hills residence. See United States v. Escobar, 805 F.2d 68, 71-72 (2d Cir.1986); United States v. Jackson, 778 F.2d 933, 937 (2d Cir.1985), cert. denied, 479 U.S. 910, 107 S.Ct. 308, 93 L.Ed.2d 282 (1986). Moreover, the scope of Agent Pilafian’s protective sweep did not extend beyond the “cursory inspection” deemed proper by the Supreme Court. Buie, 110 S.Ct. at 1099. Accordingly, the district court properly refused to suppress the evidence yielded by the warrant-authorized search of the Dix Hills residence.
III. The Evidentiary Rulings.
A. The admission of threat evidence.
Defendant-appellant Mickens challenges the district court’s decision to permit Mickens’ former attorney to testify that Mickens had made a hand gesture in the shape of a gun as the former attorney entered the courtroom to testify. Mickens argues that this testimony lacked probative value and that the former attorney’s testimony that Mickens had pointed at the court, not at the attorney, was unduly prejudicial. This challenge lacks merit.
Evidence, such as the former attorney’s testimony, offered under Fed.R.Evid. 404(b) may be admitted if the court: 1) determines that the evidence is offered for “a purpose other than to prove the defendant’s bad character or criminal propensity,” United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989); 2) determines that the evidence is relevant under Fed.R.Evid. 401 & 402, and is more probative than unfairly prejudicial under Fed.R.Evid. 403, id. (quoting United States v. Ortiz, 857 F.2d 900, 903 (2d Cir.1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989)); and 3) provides an appropriate limiting instruction to the jury, if one is requested, id. (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988), and United States v. Ortiz, 857 F.2d at 903).
In the present case, the standards for admission of Rule 404(b) evidence were satisfied. The testimony about the hand gesture was not offered to prove Mickens’ bad character or criminal propensity, but rather to prove his consciousness of guilt. See United States v. Bein, 728 F.2d 107, 114 (2d Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 135, 83 L.Ed.2d 75 (1984). The testimony was relevant since an effort to intimidate a key prosecution witness was probative of Mickens’ state of mind. Mickens argues that, because the testimony was that the threat was not directed at his former attorney, but at the court, the evidence should have been excluded under Rule 403. However, the fact that Mickens’ hand gesture was directed at the court does not disprove that he attempted to threaten the witness. Indeed, Mickens’ former attorney testified that he felt intimidated by the gesture. Moreover, only a preliminary hearing on the details of the witness’ proposed testimony would have avoided the unanticipated statement that Mickens’ gesture was directed at the court. While, in retrospect, such a preliminary hearing may have been helpful, it is simply not required by Rule 404(b). See Huddleston, 485 U.S. at 686-89, 108 S.Ct. at 1499-1501. We also note that Mickens’ acquittal of two counts of distributing cocaine belies the argument that admission of the threat evidence was unduly prejudicial to Mickens. In sum, the district court’s decision to admit the testimony about Mickens’ apparent threat was not an abuse of discretion. See United States v. Qamar, 671 F.2d 732, 736 (2d Cir.1982); see also United States v. Jamil, 707 F.2d 638, 642 (2d Cir.1983).
B. The evidence of a prior narcotics conviction.
Mickens contends that the district court erred in admitting evidence, pursuant to Fed.R.Evid. 404(b), of Mickens’ prior involvement in narcotics activity, including his 1983 conviction for possessing and selling cocaine. Defendant-appellant Kearney also argues that the court improperly admitted evidence that she visited Mickens while he was serving his prison term for the 1983 conviction. We reject both challenges.
Applying the standards discussed above, we hold that this evidence was properly admitted under Rule 404(b). Mickens’ pri- or involvement in narcotics activity was relevant to the prosecution’s tax evasion and money laundering theory that narcotics sales provided the cash which Mickens spent so lavishly. In addition, Kearney’s visits to Mickens while he was incarcerated were relevant to the second element of the money laundering charge, i.e., that Kear-ney knew that the laundered funds derived from an unlawful source. The district court’s judgment that the probative value of this evidence was not substantially outweighed by its potential prejudicial effect was not an abuse of discretion. See United States v. Smith, 727 F.2d 214, 220 (2d Cir.1984); United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982). Moreover, the court provided a limiting instruction to the jury, informing them of the appropriate use of this evidence. See United States v. Ortiz, 857 F.2d at 903.
C. The in-court identification.
Defendant-appellant Mickens contends that the court erred in permitting various automobile salesmen to identify him in court because those witnesses were previously shown unduly suggestive photo arrays. This contention is unpersuasive.
The pre-trial photo array procedure which Mickens challenges was not “unduly suggestive of the suspect’s guilt.” Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir.1982). Mickens’ arguments notwithstanding, the fact that his picture was the only photocopy in the array is insignificant. Cf. United States ex rel. Cannon v. Montanye, 486 F.2d 263, 267 (2d Cir.1973), cert. denied, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed.2d 313 (1974); United States v. Fernandez, 456 F.2d 638, 641 (2d Cir.1972). Indeed, this difference was so minor that the district court did not notice that Mick-ens’ picture was a photocopy until the defense pointed it out. See United States v. Archibald, 734 F.2d 938, 940 (2d Cir.1984); see also Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir.1986). Even if Mickens’ argument was accepted, it would be of little import since Mickens does not contest his involvement in the transactions in which he was identified. Mickens’ defense is not mistaken identity, but that the various purchases were not made using the proceeds of narcotics activity. Accordingly, it was not error to permit the automobile salesmen who had spotted Mickens in the array to identify him in court.
IV. The Jury Instruction Claim.
Defendants-appellants Mickens, Kearney and Celifie contend that the district court’s instructions to the jury regarding the elements of money laundering, 18 U.S.C. § 1956, constructively amended the indictment against them. We disagree.
To prove a violation of section 1956, the government must establish that a financial transaction “involves the proceeds of specified unlawful activity.” 18 U.S.C. § 1956(a)(1) (emphasis added). The government is further required to demonstrate that the defendant knew that “the property involved in [the] financial transaction represents the proceeds of some form of unlawful activity.” Id. (emphasis added). The indictment counts charging defendants-appellants with money laundering, in pertinent part, stated:
[Defendants-appellants] did knowingly and wilfully conduct and attempt to conduct a financial transaction which involved the proceeds of a specified unlawful activity, to wit: narcotics distribution, knowing that the property involved in such financial transaction, to wit: United States currency, represented the proceeds of some form of unlawful activity and knowing that the transaction was designed in whole or in part to conceal and disguise the nature, the source, the ownership and the control of the proceeds of a specified unlawful activity.
Paralleling the indictment, the district court instructed the jury, inter alia:
The first element of the offense which the government must prove beyond a reasonable doubt is that the defendant you are considering in the count you are considering conducted or attempted to conduct a financial transaction involving property constituting the proceeds of specified unlawful activity, specifically, narcotics distribution.
sk sfc * sjs *
The second element of the offense which the government must prove beyond a reasonable doubt is that the defendant you are considering in the count you are considering knew that the property involved in the financial transaction was the proceeds of some form of an unlawful activity.
This instruction accurately stated the applicable law and conformed to the terms of the indictment.
The defendants-appellants focus, however, on the court’s explanation of the second element of section 1956. In this regard, the court instructed:
I instruct you that this [second] element refers to a requirement that the defendant knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under state or federal law.
I instruct you as a matter of law that narcotics distribution is a felony, as is, for example, gambling.
Again, this instruction adheres to the indictment. Moreover, since the challenged instruction pertained only to the second element of section 1956, it did not enlarge the prosecution’s theory regarding the first element, i.e., that the laundered money represented proceeds from narcotics activity. Accordingly, defendants-appellants’ contention that the indictment charging them with violating section 1956 was constructively amended must be rejected. See United States v. Weiss, 752 F.2d 777, 787-88 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985).
V. The Constitutionality of 31 U.S.C. § 5313.
Defendants-appellants Mickens and Celifie moved before the district court for the dismissal of indictment counts alleging violation of 18 U.S.C. § 1956(a)(l)(B)(ii) and 31 U.S.C. § 5324 (1988), claiming that the domestic currency transaction report (“CTR”) requirements giving rise to those charges are unconstitutional. Specifically, Mickens and Celifie argued that the CTRs required under 31 U.S.C. § 5313(a) (1988) violate the fifth amendment privilege against self-incrimination. The district court denied this motion, and defendants-appellants now challenge that denial. We reject this challenge.
The fifth amendment privilege against self-incrimination protects against governmental compulsion of self-incriminating testimonial communication. See Fisher v. United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39 (1976); Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 615, 34 L.Ed.2d 548 (1973). Section 5313(a) and its implementing regulations, 31 C.F.R. § 103.22 (1990), require financial institutions to report certain transactions. See United States v. St. Michael’s Credit Union, 880 F.2d 579, 581-82 (1st Cir.1989). Individuals, including defendants-appellants, are not themselves compelled to report their transactions. See United States v. Hoyland, 914 F.2d 1125, 1130 (9th Cir.1990). Absent such compulsion, Mickens, Kearney, and Celifie may not complain that their fifth amendment rights were violated. See Couch v. United States, 409 U.S. at 328, 93 S.Ct. at 616 (“The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself’; it necessarily does not proscribe incriminating statements elicited from another.”); see also Hoyland, 914 F.2d at 1130.
Moreover, even if 31 U.S.C. § 5313(a) were construed to compel reporting by defendants-appellants, we would find no fifth amendment violation. Reporting requirements have been considered vio-lative of the fifth amendment if they “would almost necessarily provide the basis for criminal proceedings against [the reporting individual] for the very activity that he was required to disclose.” United States v. Dichne, 612 F.2d 632, 640 (2d Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980); see Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 55-57, 88 S.Ct. 697, 706-07, 19 L.Ed.2d 889 (1968). By contrast, section 5313(a) is a legitimate reporting requirement which targets transactions without regard to the purposes for which they are undertaken. See Dichne, 612 F.2d at 639-41. Section 5313(a) does not require the reporting of information that would necessarily be criminal. Like the foreign CTR requirements considered in Dichne, section 5313(a)’s reporting requirements do not violate the fifth amendment privilege against self-incrimination. See United States v. Kaatz, 705 F.2d 1237, 1242 (10th Cir.1983); United States v. Keller, 730 F.Supp. 151, 156 (N.D.Ill.1990); United States v. Kimball, 711 F.Supp. 1031, 1032-34 (D.Nev.1989); United States v. Scanio, 705 F.Supp. 768, 778-79 (W.D.N.Y.1988).
VI. Anthony Jacobs’ Sentence.
Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, challenges the sentence imposed on him by the district court. He contends that his sentence, which exceeds twenty-seven years’ imprisonment, resulted from misapplication of the Sentencing Guidelines. We agree and, accordingly, remand to Chief Judge Platt for resentencing.
The district court’s computation of Jacobs’ offense level followed a two-step analysis in which, (1) the court approximated that the Mickens conspiracy distributed in excess of fifty kilograms of cocaine, based on Mickens’ unexplained income of over $2,000,000 during the operation of the conspiracy; and,- (2) the court attributed the full approximated amount distributed by the conspiracy to Anthony Jacobs. This quantity was added to the 24.4 grams of cocaine that Jacobs admitted to selling, and resulted in an offense level of 36. Matching Jacobs’ Criminal History Category I with this offense level resulted in a sentence range of 262 to 327 months. The court sentenced Jacobs to the high end of that range.
The district court’s initial step in calculating Jacobs’ sentence was proper, as the commentary to the Guidelines reveals:
Where ... the amount [of drugs] seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records....
U.S.S.G. § 2D1.4, application note 2. In theory, the court’s second step was also proper. Pursuant to Guidelines § 1B1.3, one convicted of a narcotics conspiracy may be sentenced on the basis of “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.” U.S.S.G. § 1B1.3, application note 1; see United States v. Schaper, 903 F.2d 891, 897-99 (2d Cir.1990); United States v. Candito, 892 F.2d 182, 185 (2d Cir.1989). However, as applied to Jacobs, attribution of the full approximated amount of cocaine distributed by the Mickens conspiracy was improper. See United States v. Cardenas, 917 F.2d 683, 687 (2d Cir.1990). As Jacobs contends, such attribution
unfairly [holds him] accountable for the narcotics equivalent of four years’ worth of unreported income of another, whose funds may have been accumulated at any prior time, and may have come from any source—including Mickens’ independent, personal transactions in the early 1980’s ..., or some other narcotics conspiracy in which Mr. Jacobs played no part, or even from some altogether different activity such as gambling.
Absent reliable evidence connecting Jacobs to the quantity of narcotics extrapolated from Mickens’ unreported income, Jacobs’ 327-month sentence is unsupportable. Moreover, ascribing “managerial” status to Jacobs without conducting a hearing— something which the probation department and prosecution originally agreed was necessary—was erroneous. See United States v. Lanese, 890 F.2d 1284, 1293 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990).
VII. Bettina Jacobs Celifie’s Sentence.
In sentencing defendant-appellant, cross-appellee Bettina Jacobs Celifie to a term of imprisonment of eighteen months, the district court downwardly departed twenty-three months from the applicable sentencing range. The government cross-appeals from that sentence, contending that the departure was improperly based on Celi-fie’s acceptance of responsibility and on the request for leniency made by the jury in announcing its guilty verdict. We agree and remand to Chief Judge Platt for resen-tencing.
A sentencing court may downwardly depart if it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (1988). Whether a particular factor is a permissible ground for departure is a legal issue, which we review de novo. United States v. Joyner, 924 F.2d 454, 459 (2d Cir.1991); United States v. Barone, 913 F.2d 46, 50 (2d Cir.1990). “Departure authority, though not designed to prevent a sentencing judge from exercising ‘discretion, flexibility or independent judgment,’ is nonetheless a device for implementing the guideline system, not a means of casting it aside.” United States v. Joyner, at 460 (quoting United States v. Lara, 90S F.2d 599, 604 (2d Cir.1990)).
In the present case, the district court apparently believed that the two-point reduction awarded for Celifie’s acceptance of responsibility, U.S.S.G. § 3E1.1, did not adequately reflect the degree of her contrition. We do not foreclose the possibility that this rationale may, in an appropriate case, support a downward departure. However, in sentencing Celifie, the district court made no finding that the circumstances justified a departure for Ce-lifie beyond the two-point reduction she received under the guidelines.
Moreover, the court erred in relying on the jury’s recommendation of leniency for Celifie as a basis for downward departure. Sentencing decisions are solely the province of the judge. See United States v. Romo, 914 F.2d 889, 895 (7th Cir.1990); see also United States Sentencing Commission, Guidelines Manual, Introduction (Nov. 1990) (“Pursuant to the [Sentencing Reform] Act, the sentencing court must select a sentence from within the guideline range.”) (emphasis added). The jury’s sympathy for Celifie may reflect circumstances that the court could appropriately consider in granting a downward departure. However, reliance on the jury’s request for lenient sentencing treatment of Celifie, without more, is an insufficient basis to justify a downward departure.
CONCLUSION
We have examined each of defendants-appellants’ remaining arguments and find them to be without merit. In light of the foregoing, the district court’s judgment is affirmed in part, reversed in part, and remanded to Chief Judge Platt.
. Chief Judge Platt charged:
During the course of the trial, I have had to admonish or reprimand attorneys on both sides of the case because I did not believe that what one or more of them was doing was proper. You should draw no inference against an attorney or his or her client.... It is irrelevant whether you like a lawyer or whether you believe I like a lawyer. The issue before you is not which attorney is more likeable or the better attorney. The issue is whether or not the government has sustained its burden of proof.
The fact that the Court has asked one or more questions of a witness for clarification or admissibility of evidence purposes is not to be taken by you in any way as indicating that the Court has any opinion as to the guilt or lack thereof of a defendant in this case, and you are to draw no such inference therefrom. That determination is up to you, and you alone, based on all of the facts in this case and the applicable law in these instructions.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 31? Answer with a number.
Answer:
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songer_direct1
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
INDEPENDENT COMMUNITY BANKERS ASSOCIATION OF SOUTH DAKOTA, INC., Petitioner, v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Respondent, Michigan National Corporation, Intervenor.
No. 86-5373.
United States Court of Appeals, Eighth Circuit.
Submitted May 11, 1987.
Decided Jan. 28, 1988.
R.G. Schmidt, Pierre, S.D., for petitioner.
James E. Scott, Washington, D.C., for respondent.
Before HEANEY and BOWMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.
HEANEY, Circuit Judge.
Independent Community Bankers Association of South Dakota, Inc. (ICBA) seeks review of an order of the Board of Governors of the Federal Reserve System (Board). This order approved the application of Michigan National Corporation (MNC) to establish and acquire the shares of a new national bank in Rapid City, South Dakota. We reverse the decision of the Board.
I
MNC is a bank holding company as defined in the Bank Holding Company Act of 1956, 12 U.S.C. §§ 1841-48, with some twenty subsidiary banks in Michigan and 6.1 billion dollars in domestic deposits. On June 9, 1986, it submitted an application to the Board to establish and acquire a national bank in Rapid City pursuant to 12 U.S.C. § 1842. In its application, MNC stated that it sought to acquire the bank in order to transfer its consumer credit card operations to South Dakota. In passing upon the application, the Board assumed that the transfer was motivated by MNC’s desire to take advantage of the fact that South Dakota had repealed its usury statute.
Central to the Board’s approval of the application was its interpretation of section 3(d) of the Bank Holding Company Act, 12 U.S.C. § 1842(d). The section, commonly known as the “Douglas Amendment”, allows the Board to approve an application by an out-of-state bank holding company to acquire a bank located outside of the state in which it principally conducts its operations. The Board may approve such an acquisition only if the law of the state in which the acquired bank is located specifically authorizes such acquisitions.
In 1980, South Dakota enacted legislation to provide the authorization required by the Douglas Amendment. The authorization, however, is not an unrestricted invitation to do business. New banks acquired by out-of-state bank holding companies are limited to one office. This office is to be located and operated in “a manner not likely to attract customers from the general public in the state to the substantial detriment of existing banks in the state.” S.D. Codified Laws Ann. § 51-16-41. In addition, an acquisition authorized by the statute must be approved by the South Dakota Banking Commission, “subject to such conditions as the commission deems necessary, and to the commission’s continuing authority to ascertain the bank holding company’s compliance with the [authorizing statute] and the conditions of approval.” S.D. Codified Laws Ann. § 51-16-42.
In an order dated September 15, 1986, the Board approved MNC’s application to acquire the new South Dakota bank. In doing so, the Board rejected objections raised by ICBA that the Douglas Amendment does not authorize states to permit out-of-state bank holding companies to acquire national banks. Alternatively, ICBA argued that even if the amendment authorizes states to permit such acquisitions, it does not allow them to condition permission on compliance with state regulation by the acquired bank. ICBA raises these arguments on appeal.
II
ICBA contends that the Douglas Amendment does not authorize a state to permit an out-of-state bank holding company to acquire a national bank. We disagree. In Independent Community Bankers Association of South Dakota, Inc. v. Board of Governors of the Federal Reserve System, 820 F.2d 428 (D.C.Cir.1987), a case involving an identical factual situation, the Court of Appeals for the District of Columbia examined the Douglas Amendment and its legislative history. It found that the amendment contains two operative provisions. The first absolutely prohibits the Board from approving the acquisition of any additional bank, state or national, located outside of the home state of the applicant bank holding company. Id. at 433. This provision reads:
[N]o application shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company's banking subsidiaries were principally conducted on July 1,1966, or the date on which such company became a bank holding company whichever is later[.]
12 U.S.C. § 1842(d).
The Court found that the remainder of the provision modifies the first part of the section. This provision states:
[U]nless the acquisition of such shares or assets of a State bank by an out-of-State bank holding company is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication.
Id.
ICBA argued to the Court of Appeals for the District of Columbia and argues to this Court that the latter clause provides an exception to the first that, by its terms, is applicable only to state banks and not to national banks. In contrast, the Board contends that authorization under the second clause completely suspends the operation of the first. That is, if a state permits interstate bank acquisitions of state chartered banks, the lifting of the first clause’s prohibition provides for similar treatment for national banks.
With respect to this issue the D.C. Circuit stated:
The plain meaning of the Amendment in its entirety supports the Board’s reading. By its terms, the first clause of the Amendment prohibits the interstate acquisition of both state and national banks. The second clause provides the carte blanche prohibition stands unless the state permits the interstate acquisition of “such shares or assets of a State bank.” The ordinary meaning of this language compels the conclusion that the entire prohibition lifts upon the state’s authorization of interstate acquisition of a “State bank” located within its borders. The “unless” clause describes the triggering event that lifts the general prohibition with respect to all banks — “any additional bank” — located in the state. The Douglas Amendment need not specifically mention “national bank” in order to have this effect. Nor need the state specifically authorize the acquisition of national banks. In fact, the Douglas Amendment renders superfluous a state statute’s authorization of interstate acquisitions of nationally chartered banks located in the state. Such state “authorization” would, in any event, be meaningless. Bank holding companies and nationally chartered banks are organized pursuant to federal law and the power of either to acquire or be acquired is governed by federal law.
Independent Community Bankers Association of South Dakota, Inc., 820 F.2d at 433-34 (emphasis in original).
In addition, the D.C. Circuit examined the legislative history of the Douglas Amendment and found that it, like the McFadden Act, 12 U.S.C. § 36, which served as a model, sought to ensure that national banks would be treated on a par with state banks with respect to acquisitions by out-of-state bank holding companies. Id. at 435.
We agree with the D.C. Circuit and hold that “the Douglas Amendment permits the approval of an out-of-state bank holding company’s acquisition of an in-state national bank if the state in which the national bank is located has authorized the interstate acquisition of local state chartered banks.” Id.
Ill
Alternatively, ICBA argues that even if South Dakota may permit acquisition of local banks (either state or national) by out-of-state bank holding companies, it may not condition the permission on compliance with state regulations limiting the banking activities of the acquired local bank. We agree.
The Board argues that South Dakota’s regulation of the activities of a bank acquired by an out-of-state bank holding company is permissible because Congress, through the Douglas Amendment, has either expressly incorporated the South Dakota restrictions into the federal law or has authorized them. Specifically, the Board contends that the authority given the states to lift the federal prohibition of interstate acquisitions found in the latter clause of the Douglas Amendment necessarily gives states the authority to enact statutes conditioning permission on restriction of the operations of the acquired banks.
In support of its position, the Board cites Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 472 U.S. 159, 105 S.Ct. 2545, 86 L.Ed.2d 112 (1985). In Northeast, the Supreme Court considered a state Douglas Amendment statute authorizing local banks (state and national) to be acquired by out-of-state bank holding companies provided the out-of-state bank holding company is located within a defined region and provided the state in which the holding company is located has passed a reciprocal authorizing provision. The Court held that the Douglas Amendment contains implicit authority for states to permit acquisitions on a limited or conditional basis. As the Court stated, “Congress contemplated that some States might partially lift the ban on interstate banking without opening themselves up to interstate banking from everywhere in the nation.” Id. at 172, 105 S.Ct. at 2553, 86 L.Ed.2d at 124.
It is important to note, however, that Northeast did not involve the issue of a state’s ability to restrict the activities of an acquired bank once it has been given permission to do business in the state. In other words, although the Court determined that Congress intended to give states flexibility in determining whether to allow interstate acquisitions, it did not address the question of restrictions on the activities of acquired banks as a condition of permission to do business.
In contrast, in Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980), the Supreme Court struck down a Florida statute prohibiting out-of-state bank holding companies from engaging in certain non-bank activities. In so holding, the Court rejected the state’s argument that its statute was authorized by the Douglas Amendment. It stated:
We conclude that § 3(d) offers scant support for the portions of [the Florida statute] subject to challenge in this proceeding. Preliminary [sic] it is doubtful that § 3(d) authorizes state restrictions of any nature on bank holding company activities. The language of the statute establishes a general federal prohibition on the acquisition or expansion of banking subsidiaries across state lines. The only authority granted to the States is the authority to create exceptions to this general prohibition, that is, to permit expansion of banking across state lines where it otherwise would be federally prohibited. Furthermore, the structure of the Act reveals that § 3(d) applies only to holding company acquisitions of banks. Nonbanking activities are regulated separately in § 4, which does not contain a parallel provision.
Id. 447 U.S. at 47, 100 S.Ct. at 2021.
Additionally, the D.C. Circuit has expressly addressed the restrictions imposed by the South Dakota statute on the activities of banks acquired by out-of-state bank holding companies. The Court stated:
We can locate no grounds for declaring that the Douglas Amendment authorizes state regulation of the operations of national banks acquired pursuant to the state’s “Douglas Amendment” statutes. Neither the Douglas Amendment nor its legislative history speaks to this question, and no court has broached the issue. The Board’s notion of congressional authorization returns us to the nettlesome problem posed by the potential conflict between state-imposed conditions and federal banking law. If we find that Congress granted the states the authority to impose conditions on national banks, then the effect will be to nullify federal banking laws and to regulate an increasing number of national banks in a manner that is repugnant to federal policies. In other words, the Douglas Amendment would operate as an implied statutory repeal of many important federal banking laws. * * * “It is ... a cardinal principle of statutory construction that repeals by implication are not favored.” Generally, courts will not find repeals by implication unless legislative intent to repeal is “clear and manifest.” Neither the language of the Amendment nor its legislative history indicates an intention to abrogate extant federal banking law governing bank holding companies and their subsidiary nationally chartered banks. We therefore decline to hold that Congress created, through the Douglas Amendment, the specific authority for South Dakota to impose restrictions on national banks.
Independent Community Bankers Association of South Dakota, Inc., 820 F.2d at 438 (citations omitted).
We agree with the D.C. Circuit that the Douglas Amendment neither incorporates nor authorizes the South Dakota statute restricting the operations of acquired national banks. Thus, if the South Dakota statute is to survive scrutiny, it must be within the authority of the state to enact.
The Board contends that even in the absence of congressional authority, South Dakota may regulate the operations of acquired banks so long as the regulation is not contrary to federal law. We note that prior to passage of the Douglas Amendment, states enjoyed some power to regulate national banks. See Davis v. Elmira Savings Bank, 161 U.S. 275, 278, 16 S.Ct. 502, 503, 40 L.Ed. 700 (1896) (“It is certain that, insofar as not repugnant to acts of Congress, the contracts and dealings of national banks are left subject to the state law”); Independent Community Bankers of South Dakota, 820 F.2d at 438. Yet as the Supreme Court has stated:
National banks are instrumentalities of the Federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt by a state to define their duties or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation, or impairs the efficiency of these agencies of the Federal government to discharge the duties for the performance of which they were created.
Davis, 161 U.S. at 283, 16 S.Ct. at 503.
We agree with the D.C. Circuit that even in considering purely legal issues, courts should grant great deference to the reasonable interpretations of statutes by the agencies charged with administering those statutes. See Independent Community Bankers of South Dakota, Inc., 820 F.2d at 439, see also Board of Governors of the Federal Reserve System v. Investment Company Institute, 450 U.S. 46, 56-57, 101 S.Ct. 973, 981-82, 67 L.Ed.2d 36 (1981). This is particularly true if the interpretation involves a technical area that is highly specialized and requires coordinated management in all its phases. Investment Company Institute, 450 U.S. at 56 n. 21, 101 S.Ct. at 982 n. 21.
In finding that the proposed acquisition is authorized by state law the Board cited three sources for support. First, it found that the South Dakota Banking Commission concluded that the proposed acquisition met the requirements of the South Dakota statute. Second, it relied on its prior decision in First City Bancorporation of Texas, Inc., 71 Federal Reserve Bulletin 716 (1985). Finally, it cited a July 31, 1986 letter of the Comptroller stating, “to date, the South Dakota law has not required that national banks restrict their activities in a manner which is unsafe or unsound or otherwise in conflict with the purposes of the National Bank Act.” Each of these authorities presumes that the South Dakota authorizing statute is a valid exercise of state power. Indeed in a prior decision, the Board considered whether the South Dakota authorizing statute is consistent with the Commerce Clause and presumed it valid on its face. Citicorp, 67 Federal Reserve Bulletin 181 n. 4 (1981).
Thus, it, appears that in this case the Board presumed the limitations on the activities of the acquired bank are authorized by the Douglas Amendment and presumed they are consistent with the Commerce Clause. Cf. Iowa Independent Bankers v. Board of Governors of the Federal Reserve System, 511 F.2d 1288, 1293 n. 4 (D.C.Cir.1975) (“we feel constrained to register our substantial doubt that the Board can continue to presume conclusively the constitutional validity of state or federal laws in light of the Supreme Court’s opinion in Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965)”).
More importantly, the Board’s finding, insofar as it is based on the constitutional validity of the South Dakota authorizing statute, is subject to de novo review by this Court. Thus, although this Court should grant great deference to the Board’s interpretation of national banking law, Board of Governors of the Federal Reserve System v. Investment Company Institute, 450 U.S. 46, 56-57, 101 S.Ct. 973, 981-82, 67 L.Ed.2d 36 (1981), that deference should not deter us from correcting the Board when its decision rests on an erroneous presumption concerning the resolution of an important constitutional issue.
The crux of this case is that South Dakota seeks to provide its citizens with the jobs and benefits a large national credit card operation can provide (attracted by the ability to export limitless credit card interest rates to other states) while protecting its local banks (both state and national) from the competition such national credit card banks could pose. In this regard, the Lewis case is instructive. In Lewis, the Court found that the statute at issue was “parochial” in the sense that it prevented “out-of-state firms with the kinds of resources and business interests that make them likely to attempt de novo entry” from competing in local markets. Lewis, 447 U.S. at 39, 100 S.Ct. at 2017. The Court went on to state:
With regard to the asserted interest in promoting local control over financial institutions, ... [i]n almost any Commerce Clause case it would be possible for a State to argue that it has an interest in bolstering local ownership, or wealth, or control of business enterprise. Yet these arguments are at odds with the general principle that the Commerce Clause prohibits a State from using its regulatory power to protect its own citizens from outside competition.
Lewis, 447 U.S. at 44, 100 S.Ct. at 2019 (citations omitted).
In short, the Court found that it did not have to determine whether the Florida statute at issue was invalid as a per se violation of the Commerce Clause because it “discriminates among affected businesses according to the extent of;their contacts with the local economy,” id., 447 U.S. at 42, 100 S.Ct. at 2018, or whether, under the more permissive test, the statute could not be justified because, “the disparate treatment of out-of-state bank holding companies cannot be justified as an incidental burden necessitated by legitimate local concerns.” Id. We likewise find that the South Dakota statute here at issue fails under either standard because the restrictions it imposes on an out-of-state bank holding company’s ability to compete in local markets are precisely the type of “parochial” regulations the Commerce Clause prohibits.
In addition, the legislative history of the Douglas Amendment leads to a conclusion consistent with the Commerce Clause analysis. In pointing out the analogy between his amendment and the McFadden Act, 12 U.S.C. § 36(c), Senator Douglas stated during the floor debate:
[WJhat our amendment aims to do is to is to carry over into the field of holding companies the same provisions which already apply for branch banking under the McFadden Act — namely, our amendment will permit out-of-State holding companies to acquire banks in other States only to the degree that State laws expressly permit them; and that is the provision of the McFadden Act.
102 Cong. Rec. 6860 (1956) (remarks of Senator Douglas).
Thus, both the McFadden Act and the Douglas Amendment represented a compromise between federal and state interests in banking regulation. Under the terms of the compromise, states would remain free to regulate local banks with respect to acquisition by holding companies and branch banking, but federal law would require all banks within the state to be in a position of competitive equality whether they have been acquired by a local or out-of-state bank holding company or whether the acquired bank is state or federal. Cf. First National Bank v. Walker Bank & Trust Co., 385 U.S. 252, 258, 87 S.Ct. 492, 496, 17 L.Ed.2d 343 (1966) (national banks subject to the same branching restrictions as state banks). Such competitive equality is consistent with the dictates of the Commerce Clause.
Thus, we hold, as the Supreme Court did in the context of section 7 of the Bank Holding Company Act, that the Douglas Amendment only permits States to enact authorizing statutes that fall within the boundaries of the Commerce Clause. See Lewis, 447 U.S. at 49, 100 S.Ct. at 2022. Since the South Dakota statute here at issue falls outside of the boundaries of the Commerce Clause, any interpretation of federal banking law by the Board or the Comptroller of the Currency allowing approval of an application pursuant to such a state statute is unreasonable. Accordingly, we reverse the decision of the Board approving MNC’s application and remand to the Board with directions to withhold approval until such time as the State of South Dakota may modify its authorizing statute so as to bring it into conformity with federal law.
. Under the Supreme Court’s decision in Marquette National Bank v. First of Omaha Serv. Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), the interest rate a bank may charge on credit card loans is regulated by the law of the state in which the bank is located regardless of residence of the cardholder. Thus, by moving its credit card operations to South Dakota, the interest rate MNC may charge on its credit card loans will be essentially unregulated.
. The section states:
Notwithstanding any other provision of this section, no application * * * shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company’s banking subsidiaries were principally conducted on July 1, 1966, or the date on which such company became a bank holding company, whichever is later, unless the acquisition of such shares or assets of a State bank by a bank holding company is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication. For the purposes of this section, the State in which the operations of a bank holding company’s subsidiaries are principally conducted is that State in which total deposits of all such banking subsidiaries are largest.
12 U.S.C. § 1842(d).
.S.D. Codified Laws Ann. § 51-16-40 states:
Subject to the provisions of this chapter and to the approval of the banking commission, a bank holding company, as defined in the Bank Holding Company Act of 1956, as amended, 12 U.S.C. Sec. 1841, et seq., the principal place of business of whose banking subsidiaries is located outside the state,
(a) May acquire all or substantially all of the shares of a single new bank which is established under the laws of this state and which has minimum total capital of five million dollars and a single new national bank which is to be located in this state and which has minimum total capital of five million dollars, and;
(b) May acquire all or substantially all of the shares of a single existing bank which is established under the laws of this state.
The acquisition of any bank by a corporation that is not a bank holding company is subject to the approval of the state banking commission pursuant to § 51-16-42.
. The statute states in relevant part:
Any bank the shares of which are acquired under the authority of [the authorizing statute] shall be limited to a single banking office and such bank may not acquire, establish, share or maintain any additional banking office or remote service unit whether by merger, consolidation or otherwise. In the case of a new bank, the shares of which are acquired under the authority of [the authorizing statute] such single banking office shall be operated in a manner and at a location which is not likely to attract customers from the general public in the state to the substantial detriment of existing banks in the state.
MNC has indicated that it will comply with the dictates of the South Dakota statute. In response to a request for additional information by a senior examiner of the Federal Reserve Bank of Chicago, MNC stated:
The proposed Bank will be located at 430 Main Street, Rapid City, South Dakota, which as a location is not likely to attract the general public to the substantial detriment of existing banks. * * *
It is our intention to make it relatively inconvenient for customers to transact traditional banking services with the Bank. For instance, the teller windows for the banking organization will be located in the basement of the building. Recently, the South Dakota Banking Commission found in its approval for the acquisition by Michigan National Corporation of Independence One Bank, National Association, that the banking office of the Bank is not likely to attract the general public to such substantial detriment of the existing bank.
Designated Record at 92.
. On April 23, 1986, MNC submitted a proposal to the South Dakota Banking Commission. On June 16, 1986, the Commission issued a decision concluding that MNC’s proposal met the requirements for approval set forth in the relevant South Dakota statutes.
. In this appeal, ICBA challenges the Board’s construction of the Douglas Amendment as authorizing state statutes that condition the specific state permission required by the Douglas Amendment on compliance by acquired banks with state imposed restrictions on their activities. ICBA argues that such a construction is contrary to federal law. Since, as the Board recognizes, the immunity of the South Dakota authorizing statute from attack as violative of the dormant Commerce Clause of the United States Constitution in large part turns upon the authority given states to pass such statutes by the Douglas Amendment, we requested and received supplemental briefs from the parties on the issue.
. The Board suggests that statements in Lewis regarding § 3(d), 12 U.S.C. § 1842(d), are inap-posite because the case dealt with restrictions on the in-state non-banking activities of out-of-state bank holding companies which are expressly regulated by § 4 of the Act, 12 U.S.C. § 1843. While the case could have been decided on the ground that § 4 of the Act does not authorize the restrictions imposed by the state statute, we do not read it so narrowly. Rather, the case expresses alternative positions either one of which could provide a rationale for the decision in the case.
. In recognition of the Board’s expertise, Congress, under 12 U.S.C. § 1842(a), has given the Board exclusive original jurisdiction to pass upon a proposed acquisition of a bank (existing or newly formed) by a bank holding company. See, e.g., Whitney National Bank v. Bank of New Orleans and Trust Company, 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). If the acquired or acquiring bank is to be a national banking institution, the Board must also notify the Comptroller and consider its views and recommendations. 12 U.S.C. § 1842(b). Finally, in addition to other considerations not here relevant, the Board may not approve the acquisition of a bank by an out-of-state bank holding company unless the acquisition is authorized by the law of the acquired bank’s state. 12 U.S.C. § 1842(d) (the Douglas Amendment).
. The Board also argues to this Court that it is entitled to give weight to prior rulings of the Comptroller of the Currency which have routinely approved the charter of national “credit card” banks under state statutes similar to South Dakota’s and have found that such statutes do not violate national banking law. See, e.g., First Kentucky National Corp., 70 Fed. Res. Bull. 434 (1984); Provident National Corp., 68 Fed. Res. Bull. 260 (1982); Citicorp, 67 Fed. Res. Bull. 181 (1981).
. Indeed, to hold otherwise could well lead to parochial state legislation even more onerous than that at issue in this case. For example, Delaware has enacted a statute similar to South Dakota's with the exception that it contains an additional requirement. The Delaware statute authorizes an acquisition only if:
The bank whose stock is to be acquired employs on the date of commencement of its banking business in this State or will employ within 1 year of such date not less than 100 persons in this State in its business and, if the stock of a second bank is acquired, that bank, together with its "affiliates" as that term is defined in subchapter V of this title, will employ within 1 year of its commencement of business in this State at least 200 persons within the State.”
In sum, there must be a limit to the restrictions a state may place on the activities of an acquired bank. As the Supreme Court stated:
[T]here [can be no] serious question that an individual state acting entirely on its own authority would run afoul of the dormant Commerce Clause if it sought to comprehensively regulate acquisitions of local banks by out-of-state holding companies.
Northeast Bancorp, 472 U.S. at 174, 105 S.Ct. at 2554, 86 L.Ed.2d at 125.
. Pursuant to 12 U.S.C. § 1848 the Court may, "affirm, set aside, or modify the order of the Board, and ... require the Board to take such action with regard to the matter under review as the court deems proper.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In the matter of the complaint of the UNITED STATES of America, Appellant, for exoneration from or limitation of liability as owner of the Coast Guard Vessel, CG 40427, v. STANDARD OIL COMPANY OF CALIFORNIA, Appellee. In the matter of the complaint of the UNITED STATES of America (etc.), Appellee, v. STANDARD OIL COMPANY OF CALIFORNIA, Appellant. In the matter of the complaint of STANDARD OIL COMPANY OF CALIFORNIA, Appellant, for exoneration from or limitation of liability as owner of the tugboat “Standard No. 4,” and the barge “S.O.C.O. No. 18.” v. UNITED STATES of America, Appellee.
Nos. 72-1040, 72-1120 and 72-1121.
United States Court of Appeals, Ninth Circuit.
April 18, 1974.
Allan J. Weiss (argued), Admiralty & Shipping Section, U. S. Dept, of Justice, San Francisco, Cal., for appellant-cross appellee.
Noble K. Gregory (argued), of Pillsbury, Madison & Sutro, San Francisco, Cal., for appellee-cross appellant.
Before KOELSCH, BROWNING and CHOY, Circuit Judges.
OPINION
CHOY, Circuit Judge:
Standard Oil Company of California (Standard) and the United States each filed petitions in the district court seeking exoneration from, or limitation of, liability for the results of a disastrous gasoline fire in San Francisco Bay. Jurisdiction in personam for these petitions was based on 46 U.S.C. §§ 181-195 (1970) providing for the limitation of a vessel owner’s liability, and the Admiralty Act, id. §§ 741-752 and Public Vessels Act, id. §§ 781-790 which afford the same remedies against the United States as against private carriers. Following a court trial on the Government’s petition, the district court, sitting in admiralty, issued a final decree determining both parties to be equally and mutually at fault in causing the fire. The United States appeals from this judgment, while Standard cross-appeals from a later decree denying it contribution from the United States for certain claims filed only against Standard. We affirm the district court’s determination of mutual liability, but reverse its decision denying Standard any right of contribution.
Facts
On the evening of September 26, 1966, Standard’s Barge No. 18 was loaded at the company’s refinery in Richmond, California with some 989,730 gallons of various grades of gasoline. Standard’s Tug No. 4 was then brought into position and secured to the stern saddle of the barge for departure from Richmond to Pier 64 in the Central Basin area of San Francisco Bay where the gasoline was to be off-loaded at the Standard storage area. Between 10:45 and 11:00 p. m. as the vessels arrived at Central Basin, Tug No. 4 had mechanical difficulty in reversing its engines which prevented it from navigating and stopping in the usual manner. This forced the master of the tug, Captain Autiere, to ground the barge on an abandoned launching ramp in the southwest corner of the basin. An angle iron and drift pins attached to pilings at the ramp punctured the No. 1 port tank of the barge, and gasoline began to leak into the waters of the bay. The tug failed in its attempts to extricate the barge.
Sometime beween 11:00 and 11:30 p. m. that evening, the radio operator on duty at the United States Coast Guard’s Captain of the Port office heard a message over the “tug circuit” about a gasoline spill in the bay. The “tug circuit” is a private radio communications circuit utilized by various tug and barge operators i*n San Francisco Bay. The Captain of the Port has equipment to monitor this circuit, as well as to communicate over it in case of emergency to control vessels. This circuit is in addition to the Coast Guard’s own radio circuit which the Captain of the Port uses to communicate with other Coast Guard stations in the bay area. The radio operator reported the information concerning the spill to the Coast Guard duty officer, who took no action at that time.
About ten minutes later, the Captain of the Port’s office received a telephone call reporting a gasoline leak from Standard’s Tug No. 4 in the Central Basin. After the San Francisco Fire Department was notified, Chief Petty Officer Day, the duty officer representing the Captain of the Port, ordered Coast Guard patrol boat CG 40427, which was docked at a nearby pier, to go into the area to investigate. CG 40427, a 40-foot steel-hulled utility vessel equipped with two water cooled diesel engines, was under the operational command of the Captain of the Port. Arriving in the Central Basin about 12:05 a. m., Coxswain Bush, who was in command of the vessel, noticed that the Fire Department was already at the scene on Pier 64 with a fire truck and firemen spraying the surface in order to break up the gasoline. The concentration of gasoline was extremely heavy by then, with pronounced fumes and vapor rising like a fog some three feet from the surface. This situation was reported by radio to Officer Day, who then ordered CG 40427 to proceed to the nearby Bethlehem Shipyards and stop the continuing of any burning operations. When this was accomplished, Day ordered the patrol boat to investigate the cause and magnitude of the spill. CG 40427 proceeded over the gasoline-covered surface alongside the tug and barge. Coxswain Bush went aboard the barge, determined the amount of gasoline lost from the No. 1 port tank — eventually some 25,000 gallons — and that all other tanks appeared intact. After reporting these facts to Day, he requested and was given permission to withdraw from the area.
Shortly, the Captain of the Port’s office began to have difficulty maintaining radio contact with CG 40427, although the tug circuit remained clear. At 12:34 a. m. Officer Day departed by automobile from his office to the Central Basin to make a personal inspection. He arrived about twenty minutes later and ordered CG 40427 to take him to the stricken barge. The patrol boat again traversed the gasoline-covered waters to the two stranded vessels. Day boarded the barge and discussed with the tanker-man the feasibility of transferring gasoline from the ruptured tank to the undamaged tanks. When informed that this could be done in about ten minutes, Officer Day boarded the tug and told Captain Autiere not to attempt to move the barge because of the danger of tearing open the other tanks. Returning to CG 40427, Officer Day ordered it to return to Pier 64.
As Officer Day was leaving the pier by automobile, he noticed that the recently-arrived Standard Tug No. 2 had passed a tow line to the immobilized tug to pull the barge off the ramp. Using his car radio, he ordered CG 40427 to stop Tug No. 2 and to proceed back to Tug No. 4 to obtain the tug captain’s name and license number for an oil pollution form. The patrol boat went alongside Tug No. 2 and ordered it not to pull the barge. The tug complied and moved about 75 to 100 yards out of the area. CG 40427 then returned to Tug No. 4 and tied up port side to its starboard quarter with engines left idling. The coxswain boarded the tug to obtain Au-tiere’s license number, but when the captain said he did not have his license there, Bush returned to CG 40427 to radio Day and ask if this information might be telephoned in the morning. Unable to reach Officer Day, Coxswain Bush was just about to step back from his vessel onto the tug when he heard the port engine of CG 40427 accelerate followed by a loud popping noise behind him which sounded like a firecracker. He turned, saw what appeared to be a flame near the port side of his boat where the engine was located, and saw smoke ■ coming from the engine’s compartment, then almost instantaneously a burst of flames. In the words of one of the onlooking crewmen aboard Tug No. 2, “then the whole works blew up.”
All three crew members of the Standard tug and barge, and two of the three Coast Guard sailors were killed as a result of the fire. Only Coxswain Bush, miraculously, escaped with slight injuries. In addition, there was extensive fire damage to the three vessels and assorted property damage to docks, rafts, floats, piers and other shore property.
Claims were filed against both Standard and the United States in their respective limitation proceedings by the estates of the deceased Standard employees. Claims against only Standard were filed by representatives of the two deceased members of the Coast Guard, Coxswain Bush, and others who sustained property damage. Standard and the United States each filed affirmative claims for losses in the other’s limitation proceeding, with Standard in addition seeking contribution or indemnification from the United States. The two limitation proceedings were originally consolidated for trial, but after Standard proposed a settlement with the individual death claimants, the actions were severed and the issue of the Government’s liability was tried to the court.
Government’s Contentions
The United States raises several assignments of error: (1) the district court erred in finding that Officer Day was negligent and that CG 40427 was a proximate cause of the fire; (2) the court erred in not finding that Captain Autiere’s disobedience of the Coast Guard order not to attempt to move the barge was a supervening proximate cause of the fire; (3) the district court’s conclusion that Officer Day was a “managing officer” whose privity or knowledge could impose unlimited liability on the United States is erroneous; (4) the court erred in its computation of damage awards for the estates of the decedents.
Negligence and Causation
The Government challenges as being clearly erroneous the following findings of fact:
“The court finds that the operation of the patrol boat in the area of gasoline vapors pursuant to the orders of the Captain of the Port was a violation of the standing orders of the Captain of the Port and was negligent. This is true whether the Captain of the Port’s standing orders or the normal duty of ordinary care is used as the standard of conduct.
“The court finds by a preponderance of the evidence that the fire was started by some operation of the patrol boat in the area of gasoline vapors, either as a result of the ingestion of gasoline vapors into the air intake system of the pork engine, causing a back fire, or by sparking of an exposed electrical contact in the electrical system of the patrol boat.”
As appellant recognizes, our standard for reviewing findings of fact made by the trial court sitting without a jury in admiralty, is whether these findings can be said to be clearly erroneous. United States v. Soriano, 366 F.2d 699 (9th Cir. 1966). “A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed’. . . .” Mc-Allister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954). In making this determination, the prevailing party must be given the benefit of all inferences that may reasonably be drawn from the evidence. United States v. Alaska Steamship Co., 491 F.2d 1147 (9th Cir. 1974); Pacific Queen Fisheries v. Symes, 307 F.2d 700, 706 (9th Cir. 1962).
Appellant contends that Officer Day was not negligent in ordering CG 40427 back to the stranded tug and barge because this decision was made under the extenuating circumstances of an extreme emergency. We disagree. There was no imminent danger once Standard Tug No. 2 ceased its attempts to move the barge. By that time, the vessels had been incapacitated for almost two hours without incident. Short of actually rescuing the Standard crewmen, there was no valid purpose for the patrol boat again going into the area, since any further necessary information could have been obtained by other means, e. g. a relay over the tug circuit. Viewing the evidence in the light most favorable to thq prevailing party, Northern Fishing & Trading Co. v. Grabowski, 477 F.2d 1267, 1270 (9th Cir. 1973), we are not definitely and firmly convinced that the district court was mistaken in finding Officer Day to be negligent.
The Government also contends the finding that the patrol boat was a proximate cause of the fire is clearly erroneous because based upon mere conjecture or guess. While it is true that the actual cause of the disaster is unknown, this is often the case when damage results from a fire, simply because of the difficulties inherent in determining the real source. See Minerals & Chemicals Corp. v. S. S. National Trader, 445 F.2d 831 (2d Cir. 1971). However, it is unnecessary, as appellant urges, that the cause be proven by direct evidence. When direct proof of causation is lacking, “the causal connection can be shown by facts and circumstances which, in the light of ordinary experience, reasonably suggests that the [party’s] negligence in the manner charged operated proximately to produce the injury.” Johnson v. Griffiths S. S. Co., 150 F.2d 224, 226 (9th Cir. 1945); see Meadows & Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir. 1969). See also Michalic v. Cleveland Tankers Inc., 346 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). Our view of the record reveals substantial circumstantial evidence, not only in the testimony of Coxswain Bush, but also from other observers, which supports the district court’s finding that the patrol boat was a proximate cause of the fire.
Captain Autiere’s Conduct
The Government maintains that Captain Autiere’s failure immediately to stem the flow of gasoline from the ruptured tank by transferring it to the undamaged tanks, and his subsequent disobedience of the order not to attempt to move the barge, were negligent acts which constitute supervening proximate causes of the fire. This contention is without merit. By definition, in order to constitute a superseding cause, Captain Autiere’s acts must have intervened, or come into active operation, at a time later than some antecedent negligence on the part of the Government, thereby preventing liability for that antecedent negligence. United States v. Marshall, 230 F.2d 183, 190-191 (9th Cir. 1956). See generally W. Prosser, Law of Torts § 44 at 271 (4th ed. 1971); Restatement (Second) of Torts §§ 440-41 (1965). Here the dispatch of CG 40427, a boat ill-suited for operation in gasoline laden waters, into the danger area for the third time followed Au-tiere’s conduct.
Limitation of Liability
The United States seeks to limit its liability for damage claims to the amount of its interest in, or the value of CG 40427, because such damage occurred without its privity or knowledge as owner of the vessel. 46 U.S.C. § 183(a) (1970). Supporting this claim for limitation, the Government contends that any negligence of Chief Petty Officer Day, the non-commissioned officer standing duty watch as Captain of the Port, cannot be imputed to it since Day was “[a]eting merely as a representative of his commanding officer [with] duties no higher than that of an ordinary servant or employee . . . .” The district court determined, however, that “[t]he negligence of the United States . . . was that of the duty officer of the Captain of the Port, who for purposes of limitation of liability was a person whose knowledge of or privity to the negligence precludes the United States from entitlement to limitation.” Although stated as a conclusion of law by the district court, it is clear that this determination must be considered a finding of fact. Port of Pasco v. Pacific Inland Navigation Co., 324 F.2d 593, 599-600 (9th Cir. 1963); see Coryell v. Phipps, 317 U.S. 406, 411, 63 S.Ct. 291, 87 L.Ed. 363 (1943). As such, we find it to be amply supported by the record.
The same standards are applicable to the United States when it seeks limitation of liability because such was occasioned without its privity or knowledge, as would be the case if a private corporation were seeking the same benefit. See The Midland Victory (Petition of United States), 178 F.2d 243 (2d Cir. 1949); USNS POTOMAC (Petition of United States), 303 F.Supp. 1282, 1304 (E.D.N.C.1969). By necessity in both instances, the requisite privity or knowledge can be attributed to the owner only by the acts of its employees. The significant classification, therefore, is between those employees with sufficient managerial authority to bind the corporate, or in this case governmental owner, as distinguished from those employees having no general powers of superintendence over the whole or a particular part of the business. Compare States S. S. Co. v. United States, 259 F.2d 458 (9th Cir. 1958) with Petition of Kinsman Transit Co., 338 F.2d 708 (2d Cir. 1964). See generally Waterman Steamship Corp. v. Gay Cottons, 414 F. 2d 724, 730-731 at n. 14-15 (9th Cir. 1969); 3 Benedict on Admiralty § 490 (6th ed. 1940). In short, the inquiry must focus on whether the negligence is that of “managing officers” or, more properly, “supervisory employees.” The title or rank of these employees is, by itself, of limited value in determining on which side of the line a particular case falls. While this may be one factor, “the real test is not as to their being officers in a strict sense but as to the largeness of their authority.” Waterman Steamship Co., supra at 731, quoting In re P. Sanford Ross, 204 F. 248, 251 (2d Cir. 1913). We conclude that when he was acting as duty officer of the Captain of the Port, Officer Day had sufficient supervisory authority to charge the United States with privity or knowledge of his negligence.
As duty officer standing the watch, Officer Day had been delegated full responsibility and authority to manage the office of the Captain of the Port. In this capacity, the utility patrol boats were directly under his supervision and control. Insofar as the men aboard the CG 40427 were concerned, his orders were to be obeyed just as if they came from the Captain of the Port. Indeed, for all practical purposes, he was the Captain of the Port pro tern despite his rank in the Coast Guard. Under these circumstances we cannot say that the district court erred in its determination that his negligence was within the privity and knowledge of the United States as owner of the vessel. See States S. S. Co. v. United States, supra, 295 F.2d at 474; Great Atlantic & Pacific Tea Co. v. Brasileiro, 159 F.2d 661 (2d Cir. 1947).
The Damage Awards
The district court, after considering the age, life expectancy, number of survivors, earning capacity and personal living expenses of the four Standard employees at the time of their deaths, awarded damages to their representatives. These awards ranged in round figures from $163,000.00 to $211,000.00. The United States now for the first time maintains that the awards are an unwarranted windfall to the families of the deceased because the court failed to make greater allocations for personal living expenses, failed to deduct federal or state taxes, and failed to reduce the awards to their present value. The short answer to these contentions is that we will not reverse the trial court on issues that the record shows were never raised before it. Walker v. Continental Life & Accident Co., 445 F.2d 1072, 1075 (9th Cir. 1971); Union Pacific R. R. v. Johnson, 249 F.2d 674, 677 (9th Cir. 1967).
Standard’s Cross-Appeal
Standard cross-appeals from the district court’s order denying its contribution claim against the United States for any amounts paid or to be paid to the various property damage claimants. No contribution is sought for its payments in settlement with the representatives of the two deceased Coast Guard crewmen, or with Coxswain Bush. The district court’s denial of Standard’s claim, as between joint tortfeasors in this noncollision maritime action, was based upon the Supreme Court’s decision in Halcyon Lines v. Haenn Ship Ceiling and Refitting Co., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and later interpretations of that decision by this court. This question is an open one in this circuit. Nickert v. Puget Sound Tug & Barge, 480 F.2d 1039, 1041 (9th Cir. 1973) (dictum). We conclude that Halcyon. does not warrant the denial of contribution in this case.
Halcyon involved an action by an injured employee of Haenn, a ship refitting company hired to make repairs on a vessel, against the owners of that vessel for negligence and unseaworthiness. Halcyon Lines, the ship’s owner, im-pleaded Haenn charging that it was con-tributorily negligent in causing the accident. Reversing the lower court’s decision which permitted a claim of contribution by Halcyon against Haenn, the Court expressly created an exception to the established admiralty doctrine of apportioning damages equally among mutual wrongdoers. Although the exception is stated broadly to include all non-collision maritime cases, the Court’s reasons for denying contribution in that case were narrow. That is, where Congress had expressly immunized Haenn, as an employer of harbor workers, from suits by its employees for tort liability, the Court found it inappropriate, in effect, to evade this congressional policy by permitting a right of contribution against Haenn. Since no prior Supreme Court decision required that contribution be granted in noncollision cases, the Court refused to grant such relief in that case. Halcyon, supra at 285-287. But see White Oak Transportation Co. v. Boston, Cape Cod & New York Canal Co., 258 U.S. 341, 42 S.Ct. 338, 66 L.Ed. 649 (1922).
We agree with the Fifth Circuit Court of Appeals that regardless of whether Halcyon is strictly limited to its facts denying contribution from a joint tortfeasor who is statutorily immune from suit, or whether its broad language concerning all noncollision maritime actions is considered dictum, the Halcyon doctrine is inapplicable here. Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131, 1134 (5th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d 441 (1971). In this case, those individuals who suffered property damage filed claims first only against Standard, probably because of the great likelihood that it would be held responsible for such losses. But, had any of these claimants foreseen that the United States similarly would be held liable, undoubtedly they would have made these claims against the Government, just as the representatives of the Standard crewmen did.
This situation is unlike that in Halcyon where the injured employee was precluded by statute from suing his employer. Here, the tort liability of the United States was not limited by statute; on the contrary, the Government’s immunity has been expressly waived for its negligence in this type of case. Under these circumstances, we see no reason for not requiring the United States to contribute toward the damages resulting from its negligent conduct. Therefore, in this noncollision admiralty case where damages are the result of mutual wrongdoing, we hold that contribution will lie where no statute precludes recovery from the joint tortfeasor against whom contribution is sought. In re Seaboard Shipping Corp., 449 F.2d 132, 138-139 (2d Cir. 1971), cert. denied sub nom. Seaboard Shipping Corp. v. Moran Inland Waterways Corp., 406 U.S. 949, 92 S.Ct. 2038, 32 L.Ed.2d 337 (1972); Horton & Horton, Inc., supra, Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970).
No. 72-1040 is affirmed.
Nos. 72-1120 and 72-1121 are reversed and remanded.
. The Captain of the Port has promulgated an “Organization Book” containing orders for the operation and handling of boats by the Coast Guard, including the CG 40427. One such general order prescribed procedures for investigating oil and gasoline spills on the water and read:
“If dangerous cargo is involved, inform the OOD [officer on duty] of the danger and request him to warn the patrol craft and fireboat to stay well outside the perimeter of the spill area until it is dissipated and made safe.
“If dangerous cargo is involved, do not institute your investigation while fire preventive measures are underway. As soon as all preventive action is completed, start getting information and samples.”
. The prior decisions of this court did not require our determination of the question presented here, as to whether contribution is available in a situation in which no statute prevents recovery from a joint tortfeasor. In Amerocean Steamship Co. v. Copp, 245 F.2d 291, 294 (9th Cir. 1957) and Union Sulphur & Oil Corp. v. W. J. Jones & Son, 195 F.2d 93, 94-95 (9th Cir. 1952), we faced the same question presented by Halcyon (see text infra) of whether an indirect recovery should be permitted where a statute precluded a direct recovery. We there followed Halcyon and held that it could not. In Simpson Timber Co. v. Parks, 390 F.2d 353, 356 (9th Cir. 1957) and States S.S. Co. v. Rothschild International Stevedoring Co., 205 F.2d 253, 254-255 (9th Cir. 1953), the issues were not ones of contribution but of indemnification. Halcyon therefore was not involved, as was noted both in Rothschild, 205 F.2d at 255 and in Simpson Timber, 390 F.2d at 356, and any reference to this decision merely served the purpose of comparing the related doctrines of contribution and indemnification.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
CHOCTAW NATION and Chickasaw Nation, Appellants, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, and Lee F. White, O. R. Smiley and Mamie Smiley, Appellees.
No. 9573.
United States Court of Appeals Tenth Circuit.
March 6, 1968.
Rehearing Denied April 8, 1968.
Lon Kile, Hugo, Okl., for appellants.
Streeter v. Flynn, Oklahoma City, Okl. (Reuel W. Little, Madill, Okl., on the brief), for appellee.
Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
This is a companion case to Choctaw Nation v. Atchison, Topeka and Santa Fe Railway Company, 10 Cir., 396 F.2d 578. Reference is made to the decision in that ease for the pertinent treaties and statutes.
The land in question is a 32-acre reservoir tract reserved from allotment because of an easement obtained for reservoir purposes by a predecessor of the appellee railway company in 1903. The complaint alleges an abandonment in 1910 and a conveyance to the Choctaw Nation and the Chickasaw Nation by the railroad in 1946. The answer and cross-claim of the appellees Lee F. White, O. R. Smiley, and Mamie Smiley, abutting landowners, allege abandoment in 1946. The railroad filed a disclaimer. The district court sustained a motion of the other appellees to dismiss.
In Choctaw Nation v. The Atchison, Topeka and Santa Fe Railway Company, supra, we held that upon abandonment of the reservoir easement, title vested to the abutting landowners. The same principle applies here whether the abandonment occurred in 1910 or 1946. The conveyance to the two Nations was a nullity because the railroad had nothing to convey.
Affirmed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond2_2_3
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. The BROTHERHOOD OF RAILROAD TRAINMEN et al., Appellees.
No. 21236.
United States Court of Appeals Fifth Circuit.
March 16, 1965.
Monroe E. Clinton, Denison, Tex., Ralph Elliott, Sherman, Tex., W. A. Thie, Dallas, Tex., for appellant.
William P. Fonville, Hart Willis, Jr., Dallas, Tex., for appellee.
Before MARIS RIVES and BROWN, Circuit Judges.
Of the Third Circuit, sitting by designation.
MARIS, Circuit Judge.
The plaintiff, Missouri-Kansas-Texas Railroad Company, on June 10, 1962 brought this action in the District Court for the Eastern District of Texas to enjoin a strike of its brakemen and switch-men called for June 11th by the defendant, the Brotherhood of Railroad Trainmen, on account of the alleged refusal or failure of the plaintiff to correct hazardous and unsafe conditions caused by the lack of maintenance. The conditions complained of were, inter alia, the growth of weeds and other vegetation to such heights and density as to obscure the ground; the accumulation of debris on the ground; the growth of trees and shrubbery to such height on the rights-of-way as to brush the sides of the engines and cars in passing; the deterioration of rails; and the existence of filthy and unsanitary conditions in locker and wash rooms. A temporary restraining order was issued enjoining the defendant Brotherhood, its officers, members and locals, -from calling or participating in the strike. The plaintiff then amended its complaint to allege that no demand had been made by defendants for any agreement, or for an amendment to the existing agreement, relating to hazardous or unsafe conditions and that on June 13, 1962 the plaintiff had submitted the controversy to the National Railroad Adjustment Board. The temporary restraining order was continued in force until October 26, 1963 when the district court dissolved it and dismissed the complaint, holding that under the provisions of the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101 et seq., the court lacked jurisdiction to grant the injunctive relief prayed for. From the order dissolving the temporary restraining order and dismissing the complaint the plaintiff appealed.
The action of the district court was based upon its conclusion that the dispute between the parties was a “major dispute”, i. e., a dispute concerning the making or amendment of a collective agreement, which was within the jurisdiction of the National Mediation Board under the Railway Labor Act and not a “minor dispute”, i. e., a dispute growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions, which under the Act would be within the jurisdiction of the National Railroad Adjustment Board. The significance of the distinction, so far as the present case is concerned, lies in the fact that, while the Norris-LaGuardia Act may well operate to deprive a district court of jurisdiction to grant injunctive relief in a “major” railway labor dispute as to which the procedure prescribed by the Railway Labor Act has been exhausted, it is settled that the Act does not deprive a district court of jurisdiction to enjoin a strike arising out of a “minor” dispute which is within the jurisdiction of the National Railroad Adjustment Board and which has been submitted to the Board. Brotherhood of Railroad Trainmen v. Chicago River & I. R. Co., 1957, 353 U.S. 30, 77 S.Ct. 635,1 L.Ed.2d 622; Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R. Co., 1960, 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed. 2d 1379. Accordingly the question for our decision is whether the district court erred in concluding that the dispute between the parties in this case is a “major dispute” as to which the Norris-LaGuardia Act might apply and not a “minor dispute” as to which the court was empowered to grant injunctive relief to the plaintiff.
The distinction which the Railway Labor Act makes between the two kinds of disputes was outlined by the Supreme Court in Elgin, J. & E. R. Co. v. Burley, 1945, 325 U.S. 711, 722-723, 65 S.Ct. 1282, 1289-1290, 89 L.Ed. 1886, as follows :
“The difference between disputes over grievances and disputes concerning the making of collective agreements is traditional in railway labor affairs. * * *
“The statute first marks the distinction in Section 2, which states as among the Act’s five general purposes: ‘(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.’ The two sorts of dispute are sharply distinguished * * * it is clear from the Act itself, from the history of railway labor disputes and from the legislative history of the various statutes which have dealt with them, that Congress has drawn major lines of difference between the two classes of controversy.
“The first relates to disputes over the formation of collective agreements or efforts to secure them. * * * They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.
“The second class, however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation * * * the claim is to rights accrued, not merely to have new ones created for the future.” [emphasis added]
See also Order of Railway Conductors v. Pitney, 1946, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318.
We are satisfied that the dispute between the present parties is of the second class referred to by the Supreme Court in the Elgin case, i. e., a “minor dispute” growing out of grievances because of the alleged failure of the plaintiff to accord the members of the defendant Brotherhood the safe working conditions to which they are entitled. It is true that there is no express written provision in the existing collective agreement between the parties with respect to the working conditions of which the defendant complains. But the common law duty of the plaintiff to use reasonable care in furnishing its employees with a safe place to work is clear, Bailey v. Central Vermont R. Co., 1943, 319 U.S. 350, 352-353, 63 S.Ct. 1062, 87 L.Ed. 1444. The members of the defendant Brotherhood who are employees of the plaintiff are, therefore, entitled to compliance by the plaintiff with that existing obligation. If, however, the plaintiff has failed to perform that duty its employees are required by the Railway Labor Act to submit their grievances in that regard to the National Railroad Adjustment Board for adjustment. See Illinois Central R. Co. v. Brotherhood of Locomotive Firemen & Enginemen, 7 Cir. 1964, 332 F.2d 850. It follows that the district court erred in dismissing the complaint.
The judgment of the district court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
. On December 3, 1963 the district court granted the plaintiff’s motion for an injunction pending appeal and the defendants were enjoined from calling a strike for the reasons assigned in the complaint and conditions were imposed upon the plaintiff, l.e., removing debris, cutting all weeds, vegetation and trees within six feet of the end of ties, cleaning locker and wash rooms and repairing specified equipment.
. 45 U.S.C.A. §§ 151 et seq.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. UPSHAW, Allen, Appellant.
No. 89-5600.
United States Court of Appeals, Third Circuit.
Submitted under Third Circuit Rule 12(6) on Jan. 17, 1990.
Decided Jan. 31, 1990.
Rehearing Denied Feb. 22, 1990.
Lawrence S. Lustberg, Asst. Federal Public Defender, Office of Federal Public Defender, Newark, N.J., for appellant.
Samuel A. Alito, Jr., U.S. Atty., Glenn J. Moramarco, Asst. U.S. Atty., and Edna Ball Axelrod, Chief, Appeals Div. U.S. Attorney’s Office, Newark, N.J., for appellee.
Before BECKER, GREENBERG and NYGAARD, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Allen Upshaw was convicted by a magistrate, exercising jurisdiction pursuant to 18 U.S.C. § 3401(a), of obstruction of the mails in violation of 18 U.S.C. § 1701. He appealed pursuant to 18 U.S.C. § 3402 but the district court affirmed his conviction in an opinion and order dated July 7, 1989. An appeal to this court followed.
The facts developed at trial are as follows. Upshaw was employed as a postal truck driver by the United States Post Office at its Edison, New Jersey, facility where his assignment was to shuttle mail between Edison and either the Menlo Park or Nixon inter stations. On December 17, 1987, postal officials, suspecting Upshaw was responsible for a number of recent losses of unregistered packages, placed a “test parcel”, containing a radio transmitter enabling the package to be electronically tracked, on the Menlo Park “skid” in the belief that Upshaw would be assigned to the Menlo Park route that day. Upshaw, however, was assigned the Nixon route on that day.
The test parcel was addressed to a fictitious person, whose name had been crossed out, but had a return address label of Lift-man Jewelers in the Menlo Park Mall. The parcel was marked “return to sender” with a finger pointing to the address of Liftman Jewelers. Notwithstanding Upshaw’s assignment, he picked the test parcel off the skid, continued to his truck, and placed the parcel in a white mail bucket which was quickly filled with letters, covering the parcel. This white bucket remained in Up-shaw’s truck as he made numerous mail deliveries between Edison and Nixon.
Upshaw signed out of work at 4:45 p.m. on the afternoon of December 17, and then reentered his postal vehicle, in violation of post office procedure, holding a brown paper bag. Upshaw then left the post office holding the bag and entered his car. Postal Inspector Hangarter followed Upshaw in an unmarked vehicle, receiving a strong transmittal signal indicating that Upshaw had the test parcel. Hangarter followed Upshaw to the parking lot of a nearby office building at which Upshaw stopped. Hangarter then showed Upshaw his badge, and informed him that he was under arrest. Upshaw, however, put his car in reverse and drove off the lot leaving Hangarter, who was unable to follow him, behind.
Approximately one hour later, Upshaw returned to the Edison post office where he was interviewed, in the presence of a union shop steward, by postal inspectors. Up-shaw informed the inspectors that the box for which they were looking was in a brown paper bag, and that he could take them to it. Thereupon Upshaw led the inspectors through a Foodtown warehouse, and then to a gully, at which point he ran off and escaped the pursuing inspectors. About one hour later Upshaw reappeared at the Edison post office and was again questioned by the postal authorities in the presence of the shop steward. Although Upshaw denied having removed the parcel he asked what would happen if it re-appeared in the mail stream.
Despite a search by postal authorities, the parcel was not found in the area of the Foodtown warehouse. It did, however, arrive at the Kilmer general mail facility on December 18, 1987, as reflected by a Kil-mer date-stamp imprinted on the parcel, and was received at Menlo Park the following day.
This appeal raises questions regarding the application of 18 U.S.C. § 1701 which reads:
[w]hoever knowingly and willfully obstructs or retards the passage of the mail, or any carrier or conveyance carrying the mail, shall be fined no more than $100 or imprisoned not more than six months, or both.
There are three elements comprising a violation of § 1701: (1) willfully and knowingly; (2) obstructing or retarding; and (3) the passage of the mail. See United States v. Schankowski, 782 F.2d 628, 631 (6th Cir.1986). Upshaw concedes that two of the three elements, that he had requisite intent and knowledge and that his alleged actions affected the passage of the mail, have been satisfied. His appeal is thus founded on the question of what constitutes “obstructing or retarding” for the purposes of the statute.
Upshaw argues that the majority of the courts addressing this question have held that a substantial delay of the mail is required. He cites in this regard, Lustiger v. United States, 386 F.2d 132, 139 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1042, 19 L.Ed.2d 1142 (1968); Cohen v. United States, 378 F.2d 751, 759 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967); Canaday v. United States, 354 F.2d 849, 856 (8th Cir.1966); and United States v. Costello, 255 F.2d 876, 881 (2d Cir.1958). According to Up-shaw, the evidence at his trial did not establish that his conduct caused a substantial delay in the mails, and thus the government failed to establish that he had violated the statute. The district court rejected this argument and, as we agree, we affirm Upshaw’s conviction.
In the cases cited by Upshaw the courts did not find unlawful obstruction of the mail where there had been either no measurable delay or only an insubstantial delay of the mail as the result of an authorized “mail cover” or “mail watch.” See Lustiger v. United States, 386 F.2d at 139 (a “mail watch” which does not result in a substantial delay in the delivery of the mail is not a violation of 18 U.S.C. § 1703); Cohen v. United States, 378 F.2d at 760 (a “mail cover” of the type before the court, did not violate 18 U.S.C. §§ 1701-1703); Canaday v. United States, 354 F.2d at 856 (where there is no delay as the result of an authorized mail cover, evidence derived from the cover was not unlawfully obtained); United States v. Costello, 255 F.2d at 881 (a delay of mail for one delivery as the result of a “mail watch” did not violate § 1701). See also, United States v. Beckley, 335 F.2d 86, 90 (6th Cir.1964), cert. denied, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965) (a delay in the mail caused by a lawful seizure of mail does not violate § 1701).
The courts have, however, come to a different result when considering a delay in the mail resulting from the unauthorized conduct of an individual as, in such cases, all that has been required is a measurable delay in the mail. Thus, in United States v. Johnson, 620 F.2d 413 (4th Cir.1980), the court held that a defendant, to whom a postcard had been delivered in error and who intentionally retained it for photocopying resulting in a one day delay in delivery to the addressee, violated § 1701. The court indicated that the defendant “had no right to intentionally or deliberately obstruct or delay [mail] delivery, however slight, to the correct addressee.” 620 F.2d at 415. Thus, as the delay in returning the postcard was neither inadvertent or merely negligent but was intentional, a conviction for violation of § 1701 was affirmed. In United States v. Austin, 492 F.Supp. 502, 504 (N.D.Ill.1980), the district court on an appeal from convictions before a magistrate rejected an argument that minor delays in the mail, even if wrongfully caused, do not constitute retardation for purposes of § 1701. Thus, the court held that while the reason for a delay could be balanced against the objective of § 1701, to preclude obstruction or retarding the mail, provided the delay was attributable to a legitimate motivation, there would be no balancing if the mail was delayed for improper reasons.
This distinction, based on whether the cause of the delay was authorized law enforcement activity on the one hand, or the unauthorized action of a private individual on the other, finds support in Supreme Court precedent. In United States v. Kirby, 74 U.S. (7 Wall.) 482, 19 L.Ed. 278 (1869), the Court held that a sheriff who was executing a warrant for the arrest for murder of a mail carrier did not unlawfully obstruct the mail as the public inconvenience which might follow from the temporary delay in the transmission of the mail when a carrier is arrested was less than that which would arise from extending an immunity from arrest to him.
On the basis of the foregoing authorities, we conclude that if there is a willful obstruction of the passage of the mail for some illegitimate reason there is a violation of § 1701 if the delay was measurable. Here, as the delay clearly was measurable, the order of July 7, 1989, will be affirmed.
. There is some question as to our standard of review in this case. Usually on an appeal from a criminal conviction our standard is whether the record, when viewed in the light most favorable to the government, contains substantial evidence to support the determination of guilt. See United States v. Furst, 886 F.2d 558, 565 (3d Cir.1989). Yet Upshaw's arguments are essentially legal in nature, involving a matter of statutory construction, suggesting plenary review. See United States v. Williams, 850 F.2d 142, 143 n. 2 (3d Cir.1988). Our result, however, is not dependent on which standard we follow as even exercising plenary review on all issues we would affirm the conviction.
. The cases cited by Upshaw all arose in the context of a defendant’s motion to suppress evidence obtained by the government. Nevertheless if the construction of § 1701 in that situation was helpful to him it would be entirely appropriate for him to rely on the cases in his very different situation.
. In United States v. Kirby an earlier obstruction statute was involved.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
In re John TALMAGE and Barbara Talmage, Debtors. COMPREHENSIVE ACCOUNTING CORPORATION, Plaintiff-Appellant, v. John TALMAGE and Barbara Talmage, Defendants-Appellees.
No. 84-3197.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 22, 1985.
Decided March 27, 1985.
David R. Mayo, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, Thomas A. Mass (argued), Cary S. Fleischer, Mass, Miller & Josephson, Chicago, 111., for plaintiff-appellant.
David Simon (argued), Dettelbach & Sicherman Co., L.P.A., Marvin A. Sicherman, Cleveland, Ohio, for defendants-appellees.
Before WELLFORD and MILBURN, Circuit Judges, and HILLMAN, District Judge.
Honorable Douglas W. Hillman, United States District Court for the Western District of Michigan, sitting by designation.
WELLFORD, Circuit Judge.
John and Barbara Talmage, husband and wife, herein referred to as “Talmage”, entered into a licensing agreement in 1978 with Comprehensive Accounting Corporation, herein referred to as “CAC”, which permitted Talmage to use CAC’s system of accounting and soliciting accounts. Under the agreement Talmage also became eligible to purchase client accounts that CAC developed. Indeed, Talmage purchased a number of these accounts from CAC, although it is not clear from the record whether Talmage obtained all of its clients through CAC’s marketing network. In each of the “Client Service Agreements” both Talmage and the client agreed to permit CAC “to assign or re-assign this Agreement to one of its Independent Associated Accounts” and “to substitute accounts if ... the accountant is otherwise in default of its obligations to [CAC].”
In February of 1983 Talmage filed for relief under Chapter 7 of the Bankruptcy Code at which time CAC alleges Talmage owed them $250,000. Talmage admits owing almost 1200,00o. Under the terms of the parties’ various agreements, CAC now wishes to prevent Talmage from continuing to serve any of CAC’s clients, and petitions to have Talmage turn over the client’s books and records, and the accountant work papers associated with the accounts involved.
The license agreement between CAC and Talmage included the following pertinent language:
Agreement Not To Compete. During the time Licensee [Talmage] is associated, and for a period of one (1) year after its status as a Licensee is terminated, whether by reason of lapse of time, default in its performance, or any other case or contingency Licensee or Associate will not, in any capacity directly or indirectly engage in the following activities:
1. Perform bookkeeping services for any client then currently serviced or for one year after it has ceased to be serviced by COMPREHENSIVE or another Licensee.
2. Make use of any trade secrets of COMPREHENSIVE for the mass solicitation of accounts or use of mass media as opposed to personal contact.
It is important to note, however, that nothing in the agreement prohibited Talmage from soliciting other accounts separate and apart from the CAC clients. CAC then provided Talmage with clients, although CAC permitted Talmage to develop its practice in addition to the CAC accounts transferred. Under the restrictive covenant, even after default, Talmage may develop an accounting practice as long as the clients it solicits are not CAC clients, which is contrary to the district judge’s conclusion that the covenant “would effectively remove John Talmage from practicing the accounting profession.”
Because Talmage procured extensive financing from CAC, Talmage was required under the terms of the financing agreement (not the license agreement) as additional security for the financing to have each client procured by Talmage sign a “Client Service Agreement” that essentially made the new Talmage client a CAC client. There is no indication that this requirement would have been imposed absent extensive financing from CAC to Talmage. The “Client Service Agreements” allowed CAC to assign the service contract to other accountants upon Talmage’s default, or upon termination.
Another provision in the finance agreement which is at issue gave CAC the right “to take possession of Talmage’s entire practice subsequent to Talmage’s default”:
Right to Repossess: Licensee recognizes that in the event of Licensee’s default it is essential that COMPREHENSIVE have the clear and unrestricted right to take possession of all the Licensee’s practice. This right inures to COMPREHENSIVE in the event of any defaults as set out in Article III Paragraph A above. COMPREHENSIVE will exert every effort to insure that all of these accounts successfully transfer to another Licensee or accountant and to realize the best possible price for each account.
Effectively, then, Talmage’s accounting practice, upon default, would become CAC’s, but Talmage would not be precluded from obtaining other non-CAC accounts or from working with other accounting firms. After a default, CAC must sell the accounts to another accountant and set off the sale price against the debts it is owed.
The facts in the case are not disputed. The parties stipulated that two legal issues were to be decided:
1. Whether Comprehensive has a valid security interest in the accounts; and
2. Whether restrictive covenants are enforceable that prohibit Debtors from soliciting or servicing accounts once they are transferred to Comprehensive.
The virtually uncontested eight page complaint of CAC was before the court plus an uncontested affidavit of Amos T. Finkle, CAC Vice President, describing the arrangement between the parties. Talmage would, and did, utilize CAC’s trademark, data processing center, its various accounting and bookkeeping procedures, the accounts assigned to it, as well as CAC’s alleged trade secrets. CAC was found to have a “valid and enforceable security interest in the accounts receivable, contract rights and work papers of Talmage, Inc.” (the corporate name under which Talmage operated). Initially CAC claimed a similar security interest in the books and records of clients possessed by Talmage, but this contention has been dropped, and CAC only claims such an interest in work papers with reference to such client accounts. Talmadge on brief disputed the court’s finding of a valid security interest in the “accounts,” but made no argument challenging the correctness of the conclusions that CAC had a valid security interest therein to the extent recognized by the district court.
There is some contention by CAC that both the bankruptcy judge and the district court made unfounded factual findings or drew conclusions from assumed facts not actually before them, especially with regard to trade secrets. The bankruptcy judge, however, merely concluded that “general knowledge gained by an employee during his employment” are not “worthy of protection” under Illinois law as “trade secrets,” and that CAC’s “method of providing services cannot be protected” even if characterized as a “trade secret.” The district court, without discussion, concluded that the “trade secret” rights asserted by CAC would not be enforced. We find the bankruptcy court’s reference to “employee general knowledge” inappropriate, however, because the agreements between the parties are not between employer and employee, but rather are between independent business entities, a licensor and licensee, an assignor and assignee.
Under Illinois law a different standard is applied in considering employer-employee rather than licensor-licensee agreements involving restrictive covenants. The important issue, therefore, is whether there is a valid restrictive covenant between these business entities since we conclude that Talmage is not treated as an employee by CAC, but rather as a licensee, a separate contractor. In this respect we differ with the bankruptcy court which referred to Illinois cases dealing with restrictive covenants between an employer and employee. See Revcor, Inc. v. Fame, Inc., 85 Ill. App.2d 350, 228 N.E.2d 742 (1967); Solar Textiles Co. v. Fortino, 46 Ill.App.2d 436, 196 N.E.2d 719 (1964); Snyder v. Hamilton, 39 Ill.App.2d 352, 189 N.E.2d 97 (1963), all of which we find inapposite. Similarly, the district court mischaracterized the covenant not to compete as a “restrictive employment covenant.” The bankruptcy court, misapplying an employer-employee relationship to this licensor-licensee arrangement between independent business entities, was in error therefore in reaching the legal conclusion that “no legitimate interests of Comprehensive [CAC] exist to support the restrictive covenant imposed.” See O’Sullivan v. Conrad, 44 Ill.App.3d 752, 3 Ill.Dec. 383, 358 N.E.2d 926 (1976), noting this distinction. Likewise, the district court erred in finding the covenant not to compete as “greater than necessary to protect the legitimate [employer] interests of Comprehensive [CAC].”
The factors considered in evaluating the validity and enforceability of a covenant not to compete between employer and employee under Illinois law are:
1) the injury to the public;
2) the possible undue hardship to the promisor;
3) whether the restraint is greater than necessary to protect the promisee’s interest; and
4) the reasonableness of time limitations and geographic scope of the covenant.
Tower Oil & Technology Co. v. Buckley, 99 Ill.App.3d 637, 54 Ill.Dec. 843, 848, 425 N.E.2d 1060, 1065 (1981). The type of covenant involved in this case, one ancilliary to a sale or license agreement, however, is scrutinized to determine whether the restriction is reasonable, or “necessary in its full extent for the protection” of the one party “and at the same time not ... oppressive” to the other party “or injurious to the interests of the general public.” O’Sullivan v. Conrad, 44 Ill.App.3d at 756, 3 Ill. Dec. at 386, 358 N.E.2d at 929. The determination to be made is a question of law. Barrington Trucking Co. v. Casey, 117 Ill.App.2d 151, 253 N.E.2d 36 (1969); O’Sullivan, supra; Tower Oil, supra.
The Tower Oil case involved a suit by a former employer against the former employee seeking to enforce a restrictive covenant in an employment contract. Like other cases involving this kind of relationship, the courts are more concerned about hardship to an individual employee such as Buckley, a lubricant salesman, in his ability to earn a living than they are to a separate business entity, in the instant case an accounting business, or even a professional accountant, in considering “undue hardship” imposed by the restriction. Yet in Tower Oil, the court recognized the “social utility” of a “post-employment” restrictive covenant to “protect the employer from the unwarranted erosion of confidential information.” 54 Ill.Dec. at 848, 425 N.E.2d at 1065. In Tower Oil, a three-year period of restriction without geographic limitation was found to be reasonable to protect the employer from “disadvantageous use of confidential information revealed to an employee.” 54 Ill.Dec. at 849, 425 N.E.2d at 1066. Tower Oil recognized also the propriety of “protection of an established clientele from takeover by a former employee as a legitimate interest.” Id. See also Donald McElroy, Inc. v. Delaney, 72 Ill. App.3d 285, 27 Ill.Dec. 892, 389 N.E.2d 1300 (1979); J.D. Marshall Int’l Inc. v. Fradkin, 87 Ill.App.3d 118, 42 Ill.Dec. 509, 409 N.E.2d 4 (1980).
Although Tower Oil dealt with an employer-employee situation and involved much more severe time limitations on a non-professional worker, the court held the restrictive covenant agreement to be reasonable. Covenants of greater length that the one year limitation here involved have been upheld in a number of other Illinois cases. See Donald McElroy, Inc., supra; Frank D. Hall & Co. v. Payseur, 78 Ill. App.3d 230, 33 Ill.Dec. 522, 396 N.E.2d 1246 (1979). Again, in Tower Oil there was the absence of a geographical limitation in the covenant, but, as in the instant situation, Tower Oil’s employee, Buckley, was not prevented from working in any particular geographical area. See also J.D. Marshall, supra. The circumstances in Tower Oil, in summary, created a greater hardship on the limited party than does the covenant not to compete executed by Talmage. Although it involved an employer-employee arrangement, which is viewed more narrowly and construed more strictly than the business license arrangement involved between CAC and Talmadge, it was deemed to be “reasonable and enforceable.” In this case we may also presume that the business entities involved entered into their agreements, including the covenant not to compete, “voluntarily after arm’s length negotiations.” See O’Sullivan v. Conrad, 44 Ill.App.3d at 757, 3 Ill.Dec. at 387, 358 N.E.2d at 930.
We perceive no serious injury to the public in respect to the terms of a one year covenant not to compete, although it is not limited in geographic scope, that is designed to protect the legitimate business interests of CAC, whether deemed confidential information, good will, trade secrets or established clientele lists. The federal appellate court, sitting in Illinois has recognized that courts in that state will enforce reasonable covenants not to compete to protect “good will of a firm’s business” or “confidentiality of information valuable to a firm’s business” or other “certain types of contractual relations entitled to protection____” American Hardware Mutual Ins. Co. v. Moran, 705 F.2d 219, 221-22 (7th Cir.1983). The determination of the reasonableness of the agreement is a question of law and is freely reviewable by this court. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134 (6th Cir.1983).
We also conclude that the restraint here involved, considering all the circumstances, including the posture of the parties, is not substantially greater than necessary to protect the legitimate interest of CAC in enforcement. We construe the covenant not to compete, as CAC itself argues that it should be construed, not for an indeterminate term but for a one year term on’y, and conclude that such time limitation is reasonable, as are the other constraints on Talmage for that period. The covenant was clearly ancillary to a license agreement and a sale, transfer or assignment of accounts, and is enforceable. In this respect, then, we reverse the decision of the district court that the covenant was not enforceable as to Talmage. We affirm the district court decision, however, that CAC has a valid and enforceable security interest in accounts receivable, contract rights and work papers of Talmage. In addition, we hold that Talmage should reasonably be called upon under the agreement with CAC to turn over copies of books and records pertaining to clients’ accounts that are in Talmage’s possession (or in the possession of Talmage, Inc.). The original books and records that may belong to clients, of course, would not be covered by the security interest, as conceded by CAC.
As previously noted, it is important to observe that this action does not, as held by the bankruptcy judge and the district court, effectively remove Talmage from the accounting profession, nor does it require supervision by either court of each of the accounts covered by the agreements as we have interpreted them.
This case is accordingly Remanded to the bankruptcy court for further proceedings consistent with this opinion.
. This debt was secured in part of a $21,000 second mortgage of the Talmadge residence and the lower courts agreed that the mortgage was valid.
. The appropriate part of the agreement reads:
Right to Solicit and Service Other Accounts: Licensee’s right to solicit and perform bookkeeping, accounting, and tax services for any and all persons shall be unaffected by this Agreement, except as provided for hereinafter. ...
. The particular part of the agreement provided:
[Talmage will] require all clients procured other than from COMPREHENSIVE [CAC] to sign a properly completed "Client Service Agreement,” a copy of which must be filed with COMPREHENSIVE. All such "Client Service Agreements” must be properly executed and attached to Licensee’s "Growth Report” which is filed monthly with COMPREHENSIVE. No credit will be given to Licensee for any referral until such a "Client Service Agreement” is filed with COMPREHENSIVE.
. Talmadge conceded that the complaint substantially set out undisputed facts, but its answer challenged CAC’s interpretation of these facts, particularly whether any trade secrets actually were involved.
. The agreement provided the following description of an "account”:
An account is a business which agreed to have its bookkeeping, accounting, consulting or tax work performed by a Licensee of Comprehensive in accordance with the Comprehensive system. It includes all of the books, records, work papers and any and all other documentation necessary to service that account____
. As the court in Tower Oil noted, “neither the existence nor misuse of a trade secret is required to enforce a restrictive covenant.” 54 Ill.Dec. at 850, 425 N.E.2d at 1067. Thus we need not determine whether CAC’s accounting methodology constitute trade secrets.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Emil PERZINSKI, Plaintiff-Appellee, v. CHEVRON CHEMICAL COMPANY, Defendant-Appellant.
No. 73-1490.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 1974.
Decided Sept. 19, 1974.
Rehearing Denied Nov. 15, 1974.
Brad way A. Liddle, Jr. and James F. Lorimer, Madison, Wis., for defendant-appellant.
Hiram D. Anderson, Jr., Stevens Point, Wis., for plaintiff-appellee.
Before CUMMINGS, PELL and STEVENS, Circuit Judges.
PELL, Circuit Judge.
Plaintiff-appellee Emil Perzinski brought this action to recover damages resulting from a reduction in yield of his 1968 potato crop. Perzinski claimed that the damage to his crop was caused by the application of Paraquat, a herbicide distributed by the defendant Chevron Chemical Company. The jury returned a verdict in favor of the plaintiff and Chevron appeals.
Although the issues raised by Chevron are multi-faceted, they are essentially three: (1) whether the district court erred in admitting certain evidence as admissions by Chevron; (2) whether the district court erred in finding Chevron negligent as a matter of law; and (3) whether the district court erred in failing to submit to the jury a special verdict question and an instruction concerning contributory negligence on Per-zinski’s part.
I
The district court admitted into evidence, over Chevron’s objection, testimony concerning three conversations between Chevron’s salesman, Robert Sosnovske, and Perzinski. During the first conversation, which allegedly occurred shortly after the application of Paraquat, Sosnovske told Perzinski that Chevron “would back up their recommendation of the product.” The second conversation, according to Perzinski, took place at what ordinarily would have been harvest time. Perzinski testified that, at that time Sosnovske told him, “Don’t worry. We’ll take care of you.” A third discussion occurred in Perzinski’s office at which time Sosnovske is said to have asked Perzinski what damages he was claiming and to have told Perzinski, in effect, to bill Chevron for them.
The district court admitted this evidence on the ground that these statements were admissions by Chevron and admissible under Wisconsin law.
Chevron relies on Wisconsin case law which, at the time of the trial, required that in order for the statement of an agent to be admissible as an admission by the principal, there had to be evidence indicating that the agent had authority to speak (as distinguished from authority to act) on the particular subject matter. Shoemaker v. Marc’s Big Boy, 51 Wis.2d 611, 617, 187 N.W.2d 815, 818 (1971); Rudzinski v. Warner Theatres, Inc., 16 Wis.2d 241, 245-246, 114 N.W.2d 466, 468-469 (1962). Chevron argues that the district court erred in finding that the evidence indicated that Sosnovske had authority to speak for Chevron on matters of liability.
This court, however, need not decide whether the district court ruled correctly on this issue under the Wisconsin case law cited. The Wisconsin Supreme Court adopted new rules of evidence while the instant case was on appeal. The new rules took effect on January 1, 1974 and apply “to actions and proceedings brought thereafter and also to actions and proceedings then pending.” In the Matter of Promulgation of Rules of Evidence for the State of Wisconsin, 59 Wis.2d Rl. (Emphasis added.) An action is still “pending,” according to the Wisconsin Supreme Court, until there is an “exhaustion of rights of appeal.” Larson v. Fetherston, 44 Wis.2d 712, 718, 172 N.W.2d 20, 23 (1969). Since the present case was on appeal, and, therefore, “pending,” when the new rules became effective, we deem it appropriate within the spirt of Rule 43(a) to apply these rules in determining whether the evidence in question was properly admitted.
The new rules provide, in pertinent part:
“(4) Statements which are not hearsay. A statement is not hearsay if:
# * * * *
“(b) Admission by party opponent. The statement is offered against a party and is:
* * «• * * *
“(4) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship . . . .” Wis. Rules of Evidence § 908.01(4) (b)4. (Emphasis added.)
The advisory committee’s notes specify that “[t]his provision is a change in Wisconsin law.” 59 Wis.2d R243. A party introducing the statement of an agent as the admission of the principal need not show that the agent had authority to speak for the principal; rather, the present rule only requires that the agent’s statement concern “a matter within the scope of his agency or employment.”
The evidence in the present case indicated that Sosnovske had been a salesman for Chevron for at least 13 years, at the time of the discussions with Per-zinski. Sosnovske had a degree in agronomy, and, as part of his job, he advised farmers on the use of various chemicals made by Chevron. Moreover, Sosnovske personally inspected Perzin-ski’s fields both before and after the application of Paraquat and was present during the actual application of the herbicide. Sosnovske also indicated that he filled out “product-complaint forms” when customers had complaints about the Chevron products and that he then sent the completed forms to Chevron.
Chevron, by the position it adopted in defending the present claim, is in effect stating that it is placing an experienced and knowledgeable salesman in the field to convince a prospective customer that a particular product would accomplish a particular result, yet repudiating from the protective corporate shield the statements of its agents without which the sale could not have been consummated. Here, the impact of the use of a product in the manner and for the very purpose for which it was sold could be disastrous, as the jury obviously found it to be. In our opinion, Sosnovske was acting within the scope of his authority in stating in effect that the company would stand in back of the product for the specialized purpose and use for which it was sold by him. We also note that other superior representatives of the company did participate in the selling process. The statements were, therefore, properly admitted as admissions of Chevron..
Chevron also contends that even if Sosnovske’s statements were admissions by the company, the statements were, nonetheless, privileged because they were made as part of settlement negotiations. The policy rationale which excludes an offer of settlement arises from the fact that the law favors settlements of controversies and if an offer of a dollar amount by way of compromise were to be taken as an admission of liability, voluntary efforts at settlement would be chilled. That, however, is not the situation we find in the language used by Sosnovske. Instead, he was in effect stating that the herbicide was sold to you on the basis that it would aid, not substantially destroy, your crop and the company is prepared to stand in back of the basis of the sale. The dollar amount was, of course, left open but that did not make the statements of the company’s position with regard to backing up its product an offer of compromise and settlement.
II
Chevron next argues that the district court erred in finding the defendant negligent as a matter of law.
The rule in the Seventh Circuit is that, in diversity cases, state law controls as to when a verdict can be directed. Etling v. Sander, 447 F.2d 593, 594 (7th Cir. 1971). In Wisconsin, “[a]n issue should be taken from the jury and a verdict directed against a party only when the evidence gives rise to no dispute or is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.” Valiga v. National Food Co., 58 Wis.2d 232, 241, 206 N.W.2d 377, 382 (1973).
In the present case, there is no dispute that § 94.70(1) (b) of the Wisconsin Statutes forbids the distribution of any pesticide “about which claims are made, or directions for use are given, which differ in substance from the representations made in connection with its registration [with the Wisconsin Department of Agriculture].” A violation of this statute is negligence per se. Perry Creek Cranberry Corp. v. Hopkins Agr. Chem. Co., 29 Wis.2d 429, 438, 139 N.W.2d 96, 101 (1966).
Chevron also admits that the label which the company submitted to the Federal Department of Agriculture provided, in pertinent part:
“For best results, the application should be delayed to provide maximum weed and grass emergence but should be applied before 40 to 50 percent of the potatoes have emerged. An application made after 50 percent emergence may reduce yields.”
Having reviewed the entire record, we find that, viewing the evidence in the light most favorable to Chevron, the evidence was so clear and convincing that reasonable persons could reach but one conclusion, namely that the emergence of Perzinski’s potatoes in the affected fields was more than 50% at the time of the Paraquat application.
Moreover, the evidence indicated that a Chevron representative told Perzinski that Paraquat would only singe the potatoes a little and delay them about three days and that then the potatoes would be back to normal. There was no evidence that Chevron’s representative told Perzinski that there was a risk of reduced yield. The claim that the potatoes would only be “singed a little” was substantially different from the label warning that an application after 50% emergence might reduce yield. The district court, therefore, properly found that, as a matter of law, Chevron violated § 94.70(1) (b).
Chevron contends, however, that this determination is predicated on the representations in the federal label whereas § 94.70(1) (b) refers to representations in the label submitted to the state agency. (Perzinski was unable to introduce into evidence the state label and any accompanying data because the items had been destroyed by the state as a routine matter after three years.) We find Chevron’s argument unpersuasive.
The federal label represents the minimum information that could have been submitted to the Wisconsin agency and in its federal form was generally accepted by the state. Chevron admitted in oral argument that the company could not have supplied contrary information to the state and federal agencies. The label submitted to the state of Wisconsin, therefore, must have contained at least as much information regarding the hazards of applying Paraquat after 50% emergence as was contained in the federal label (i. e., Chevron could not tell the state that Paraquat would only singe potatoes if applied after 50% emergence when the company had already told the federal agency that, after 50% emergence, Paraquat might reduce yields). If Chevron submitted to Wisconsin a more detailed explanation of the problems of applying Paraquat after 50% emergence, this could only serve to increase, not decrease, the discrepancy between the label and the claims made to Perzinski.
Ill
The district court submitted to the jury three special verdict questions, one of which the court answered itself by finding Chevron negligent as a matter of law. Chevron argues that the district court erred in failing to give a special verdict question and instruction on the issue of whether Perzinski was con-tributorily negligent in failing to cultivate his fields.
A district court has considerable discretion as to the nature and scope of the issues to be submitted to the jury in the form of special verdict questions under Rule 49(a), Fed.R.Civ. P. Elston v. Morgan, 440 F.2d 47, 49 (7th Cir. 1971); Mickey v. Tremco Mfg. Co., 226 F.2d 956, 957 (7th Cir. 1955). Moreover, it is not error to refuse to submit a question or instruction where the issue is adequately covered by other questions or instructions. Gillam v. J. C. Penney Co., 341 F.2d 457, 461 (7th Cir. 1965); Mead v. Cochran, 184 F.2d 579, 482 (7th Cir. 1950).
In the present case, the issue of Per-zinski’s alleged contributory negligence, while not exhaustively so, was adequately covered by the district court in other instructions. The jury was told that “there may be more than one cause of a decreased crop yield.” The district court specifically instructed the jury that the award of damages was to be directly tied to the “natural consequence of the defendant’s negligence.” As the district judge noted, “Defendant was free to contend, and did contend, that some or all of the diminished yield was caused by factors other than the application of the Paraquat.”
We also note that there was no substantial dispute as to the dollar amount of the damages to the crop but that nevertheless the jury did, under the instructions, proceed to reduce in accordance with the comparative negligence rule followed in Wisconsin the amount of the verdict by a specific percentage. Since the dollar amount of the damages was not substantially disputed, and since the defenses of Chevron that their product was not the cause of the disaster would have eliminated any verdict, the percentage reduction in the verdict can only fairly be attributed to jury recognition that Perzinski’s failure to cultivate after the damage became obvious was, under the court's instructions on causation, a cause, even though minimal, of a decreased crop yield.
Chevron has prosecuted its appeal vigorously and the issues presented are close ones, perhaps needlessly so because the jury obviously found credibility to be with the plaintiff’s version of the case and the evidence was strong that the product in question applied pursuant to expert advice from qualified representatives of the manufacturer caused the crop failure in question. We are satisfied that justice was rendered and that a new trial is not indicated.
Accordingly, the judgment of the district court is
Affirmed.
. The plaintiff contends that any error in admitting these statements became moot when the district court found Chevron negligent as a matter of law. This contention is without merit. The statements in question were material to the issues of causation and damages as well as to the issue of negligence.
. Rule 43(a), Fed.R.Civ.P., provides inter alia, that evidence is admissible in a federal district court if it is admissible under federal statutes, or under the rules of evidence heretofore applied in federal courts in suits in equity, or under the rules of evidence in the courts of the state in which the federal court is held. The preference is for admissibility.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Gary L. COSTLOW, Appellant, v. UNITED STATES of America.
No. 76-1659.
United States Court of Appeals, Third Circuit.
Argued Jan. 14, 1977.
Decided March 22, 1977.
David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Aram K. Jerrehian, Jr., Robert E. Slota, Murphy and Slota, Bryn Mawr, Pa., for appellant.
William J. McGettigan, Asst. U. S. Atty., Philadelphia, Pa., for the United States.
Before GIBBONS and GARTH, Circuit Judges, and COHEN, District Judge.
Mitchell H. Cohen, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
In this suit under the Federal Tort Claims Act plaintiff Gary L. Costlow appeals from an order granting the government’s motion for summary judgment. Since the case was inappropriate for summary judgment, we reverse.
Costlow sustained severe permanent injury from burns of the face, arms and upper torso in an automobile accident which occurred on the Schuylkill Expressway in Conshohocken, Pennsylvania. Costlow was a passenger in an automobile which was struck from behind when it slowed down to avoid an overturned truck obstructing the highway. The overturned truck was carrying United States mail. Contending that the truck had negligently been left on the expressway so as to obstruct the extremely busy expressway traffic for over four and a half hours, and that the obstruction resulted in his accident, Costlow timely filed an administrative claim for his injuries with the United States Postal Service. When the claim was denied he instituted this lawsuit. The complaint alleges:
3. On December 11, 1974, in a public highway known as Interstate Route 76, in Conshohocken, Pennsylvania, defendant, by its agents, acting within the course and scope of their employment, negligently operated a motor vehicle so that it overturned and blocked one lane of traffic, thereby causing other vehicles to stop.
4. Immediately thereafter, at said time and place, the defendant, by its agents acting within the course and scope of their employment, negligently maintained the overturned vehicle so that a dangerous condition was caused upon the highway.
The government answered:
Defendant specifically denies that it or any of its agents, servants, workmen or employees was involved in the accident in any manner. Rather, the vehicle complained of in Paragraphs 3 and 4 of the Complaint was a Star Route vehicle owned and operated by an independent contractor, Waite, Inc., its agents, servants, workman or employees.
Thus the Complaint alleged two theories of negligence, negligently operating the vehicle, and negligently maintaining it on the highway after it overturned. The government denied that its agents were involved in either of the alleged incidents.
Costlow, upon receiving the government’s answer, served two interrogatories. The first sought information about the relationship between the United States and Waite, Inc., and was obviously designed to lead to information which might establish that although the overturned truck was not owned by the Postal Service, it nevertheless exercised such control over the truck driver that he should be considered an agent of the United States. Such information would, of course, be relevant to Costlow’s first theory of negligence. The second interrogatory sought “the names, addresses, business addresses, employers and job classifications of all persons who were involved, or in any way concerned or connected with the overturned trailer of Waite, Inc. on December 11, 1974, or the handling, processing or removal of the same or its contents from Interstate 76.” Such information would be relevant to Costlow’s second theory of negligence, since he contends, and the government has admitted, that Postal Service employees came to the scene of the accident to remove and safeguard the mail contained in the overturned truck.
Without answering the interrogatories the government filed a motion for summary judgment, supported by the single affidavit of Robert H. Wieman, Director, Transportation Services Office, United States Postal Service. The Wieman affidavit identifies and annexes as an exhibit the contract between the Postal Service and Waite, Inc. for the carriage of mail between Philadelphia and Pittsburgh. It also says that Wieman received a report of the December 11, 1974 accident which states that the driver, Joseph Faulisi, was at the time of the accident employed by the contractor, Waite, Inc. Wieman’s affidavit says nothing about the Postal Service employees who came to the scene to remove and safeguard the mail. Thus Costlow’s second theory of negligence was not even put in issue by the government’s moving papers.
In response to the motion for summary judgment Costlow filed an affidavit. It states:
2. Plaintiff believes, and therefore avers, that the defendant had, or assumed the duty of removing the overturned mail truck of the alleged privaté contractor from the highway known as Interstate 76.
This allegation plainly reiterated Costlow’s second theory of negligence, as to which Wieman’s affidavit was silent. Costlow’s affidavit also states:
4. The plaintiff has initiated discovery to ascertain the identity of the persons involved in the administration of the contract which is attached to the defendant’s motion.
5. Until the requested discovery is completed, the plaintiff cannot truly appraise its position and prospective opposition to the application for judgment.
Thus, as to the first theory, to which Wieman’s affidavit spoke, Costlow responded in the manner expressly authorized by Fed.R. Civ.P. 56(f).
Without hearing argument, the district court on March 31, 1976 granted summary judgment. In its memorandum the court reasoned:
It is readily apparent [from the text of the government’s contract with Waite, Inc.] that the driver of the overturned vehicle was the employee of an independent contractor and not a person acting on behalf of a federal agency within the meaning of the Federal Tort Claims Act
Nor can we perceive any duty or obligation on the part of the government to remove the truck from the highway.
No mention is made in the memorandum of the government’s concession in an answer, filed subsequent to its motion for summary judgment, to Costlow’s interrogatory that a number of Postal Service employees were “concerned or connected with the overturned trailer ... or the handling, processing or removal of same or its contents from Interstate 76.”
Since the government’s moving papers never even addressed Costlow’s second theory of negligence, that Postal Employees dispatched to the scene negligently maintained the truck on the highway while removing or safeguarding the mail, and since the government’s answer to Costlow’s interrogatory concedes that Postal Employees were at the scene for that purpose, it was error to grant summary judgment on this issue. Thus the judgment appealed from must be reversed.
The government urges that even if summary judgment was improper on Cost-low’s second theory, summary judgment with respect to the negligence of the truck driver was proper. We cannot agree. The crucial issue is whether the Postal Service exercised such control over the mail truck and its driver, despite the contract, that the driver was actually an employee of the federal government within the meaning of the Federal Tort Claims Act rather than an employee of an independent contractor. The district court decided that issue solely by examining the written contract. Assuming, without deciding, that in the absence of any other evidence relating to control the contract would be dispositive, it cannot be said at this stage of the proceedings that there is no other evidence. Cases discussing the issue of control discuss it as a question of fact.
Costlow contends that despite the contract the Postal Service in fact exercised control over the activities of the driver. He responded to the government’s motion for summary judgment by saying that he needed additional discovery in order to justify his opposition. Rule 56(f) contemplates such a response, and we have said that where the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course. Ward v. United States, 471 F.2d 667, 670-71 (3d Cir. 1972). We do not suggest that after discovery the status of Waite, Inc. and its driver will still be so uncertain as to preclude summary judgment. But by acting on the motion for summary judgment without argument, and without reference to what might be developed in discovery, which was being diligently pursued, the court erred.
The judgment appealed from will be reversed.
. 28 U.S.C. § 2671 et seq.
. Fed.R.Civ.P. 56(f) states:
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or "may make such other order as is just.
. See, e. g., United States v. Orleans, 425 U.S. 807, 813-816, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973).
. See, e. g., Logue, supra, 412 U.S. at 532, n.8, 93 S.Ct. 2215; Witt v. United States, 462 F.2d 1261 (2d Cir. 1972); United States v. N. A. Dergerstrom, 408 F.2d 1130, 1132 (9th Cir. 1969); Close v. United States, 130 U.S.App.D.C. 125, 397 F.2d 686 (1968).
. See n.2 supra.
. See, e. g., Tunder v. United States, 522 F.2d 913, 915 (10th Cir. 1975); Fisher v. United States, 356 F.2d 706 (6th Cir.), cert. denied, 385 U.S. 819, 87 S.Ct. 41, 17 L.Ed.2d 57 (1966).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
The BADA COMPANY, a California corporation, Plaintiff-Appellant, Cross-Appellee, v. MONTGOMERY WARD & CO., Incorporated, an Illinois corporation, Defendant-Appellee, Cross-Appellant. The BADA COMPANY, a California corporation, Plaintiff-Appellant, Cross-Appellee, v. FMC CORPORATION, a Delaware corporation; Weaver Manufacturing Co., a Division of Dura Corporation, a Michigan corporation; Big Four Industries, Incorporated, an Ohio corporation, Defendants-Appellees, Cross-Appellants.
Nos. 23436, 23433.
United States Court of Appeals, Ninth Circuit.
April 28, 1970.
Rehearing Denied in No. 23433 June 2, 1970.
C. Russell Hale (argued), of Christie, Parker & Hale, M. Roy Spielman, Pasadena, Cal., for appellant.
Lewis E. Lyon (argued), Charles G. Lyon, of Lyon & Lyon, Los Angeles, Cal., for appellee.
Before DUNIWAY, HUFSTEDLER and WRIGHT, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
Appellant is the owner of two patents relating to a system of balancing automobile wheels, and of the registered trademarks “Micro” and “Micro-Precision,” applicable to wheel weights and balancers used in the patented system. This action is for infringement of both patents and trademarks, and for unfair competition. The District Court found that the patents were invalid for obviousness, 35 U.S.C. § 103, but that if valid they had been infringed. It held the trademarks valid and infringed, and awarded damages. Defendants’ counterclaim, alleging patent and trademark misuse, was dismissed, and it has been abandoned in oral argument here.
I.
The record shows that plaintiff’s predecessor in title was the inventor of a method for balancing automobile tires covered by patent No. 3,002,388. The patented system involves four steps. First, the wheel is placed horizontally on a balancer equipped with a spirit level and allowed to tilt freely from side to side. The bubble in the spirit level indicates the location of the “light spot” on the wheel — the point of greatest imbalance and the one which tips up the highest when the wheel tilts. Second, four equal weights are placed on the rim of the wheel, two on each side of the light spot and immediately adjacent to it. The weights are of a size such that when all four are placed at the light spot, they are sufficient to correct the tilt of the wheel and just slightly to “overbalance” it. Third, the pairs of weights are moved away from the light spot equal distances along the rim, until the induced overbalance is precisely corrected and the angle of tilt, as shown by the spirit level, is zero. Fourth, one of the weights in each pair is fastened into position; the other is removed, and fastened into the corresponding position on the other (nether) side of the wheel.
The system is simple and easy to apply, and there is no dispute that its application solved what had been a problem in the industry — the development of a speedy method for wheel balancing that could be taught to relatively unskilled workers. Commercial success followed.
The District Court however found, and we agree, that each of the elements in the patented process was covered by the prior art. Thus the Booth patent, British No. 731,459, discloses a static balancer on which the wheel is placed horizontally and which utilizes a spirit level to indicate imbalance. The Booth patent, the Hume patent, No. 2,052,295, and the Morse patent, No. 2,136,633 all involve placing weights at the light spot and “fanning” them out until the wheel is precisely balanced. The Holl patent, No. 2,592,804, and the Lowe pajtent, No. 2,700,892, disclose the division of weights and the attachment of one in each pair to the opposite rim.
The patent in suit, then, is merely a combination of known prior art elements. We are enjoined to scrutinize such patents “with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements.” Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950). To be sure, the combination here filled a long-felt need and enjoyed commercial success. But that is not enough to show patentability. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 90 S.Ct. 305, 24 L. Ed.2d 258 (1969); Carborundum Co. v. Wilbanks, 420 F.2d 43 (9th Cir., 1969). Nor is this a case where a joinder of known elements produced a wholly unanticipated result, cf. United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L. Ed.2d 572 (1966). On the contrary, the spirit level indicated the light spot, as it had before; moving the weights brought the wheel into static balance, as it had before; and transferring one weight to the other rim achieved dynamic balance, as it had before. “Two and two have been added together, and still they make only four.” Great A. & P. Tea Co., supra, 340 U.S. at 152, 71 S.Ct. at 130.
Essentially the same is true of the device covered by appellant’s patent No. 3,055,221, an improvement to the prior art pivot point wheel balancer. Pivot point wheel balancers áre not different, in their essentials, from a teeter-totter of the old-fashioned type. The wheel to be balanced is placed on a support member, attached in its turn to a metal ball. When the balancer is in the “on” position, the ball pivots on a flat metal platform, tipping to one side or the other if the wheel is imbalanced. When the balancer is in the “off” position, ball and platform are disengaged.
This mechanism occasioned trouble if the operator carelessly loaded a wheel onto the balancer while the latter was in the “on” position. The sudden impact had a tendency to flatten the ball against the platform, impeding the free rotation of the ball and destroying the accuracy of the balance. The patented device consists of a spring and cam arrangement that automatically disengages ball and platform whenever a wheel is removed from the balancer. The effect is to prevent damage to the ball by making it impossible to leave the balancer accidentally in the “on” position.
It is conceded that the pivot point balancer was known to the prior art. We have examined the spring and cam arrangement added to the prior art balancer and we cannot escape the conclusion that it would have been obvious to one skilled in the art. The use of springs and cams to return mechanical devices to their initial positions is old. And we cannot say that more than ordinary skill and ingenuity are shown by the mere fact that the patented device employed the weight of the wheel being balanced to prevent an untimely return to the “off” position, rather than the pressure of the operator’s foot (as did the prior art Holl patent No. 2,592,804). When hoary devices like springs and cams are involved, it will be a rare case indeed when mere artful placement of them will be non-obvious. The improvement, we think, “is the work of the skilful mechanic, not that of the inventor.” Hotchkiss v. M. Greenwood & Co., 52 U.S. (11 How.) 248, 267, 13 L.Ed. 683 (1851).
We affirm the District Court’s conclusion that the patents were invalid.
II.
As to the trademarks, the question is whether the court below erred in finding that they were not merely descriptive of the articles involved.
The law is that a word which is in its primary meaning merely descriptive of the goods to which it is applied may not be appropriated as the exclusive trademark of a single seller, since one competitor will not be permitted to impoverish the language of commerce by preventing his fellows from fairly describing their own goods. Lanham Act § 2(e), 15 U.S.C. § 1052(e); Delaware & H. Canal Co. v. Clark, 80 U.S. (13 Wall.) 311, 20 L.Ed. 581 (1871); Rohr Aircraft Corp. v. Rubber Teck, Inc., 266 F.2d 613, 623 (9th Cir. 1959); Telechron, Inc. v. Telicon Corp., 198 F.2d 903 (3d Cir. 1952).
If, however, a mark which is merely descriptive in its primary meaning acquires over time a secondary and distinctive meaning which serves to identify the goods of a single merchant, then the law will afford protection against unfair appropriation of the benefits resulting from the mark’s secondary meaning. Lanham Act § 2(f), 15 U.S.C. § 1052(f); Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195 (1938); Safeway Stores v. Safeway Properties, 307 F.2d 495 (2d Cir. 1962); Wilhartz v. Turco Products, 164 F.2d 731 (7th Cir. 1947).
Applying these principles to the instant case, we have no difficulty concluding that the mark “Micro,” as applied to wheel weights, is merely descriptive. Both in its advertising and in its brief here, plaintiff contends that its system allowed wheels to be balanced with weights of the smallest possible size. “Micro” appears in dictionaries and in common usage as a combining form meaning extremely small, or tiny. Plaintiff’s mark, therefore, is exactly analogous to other marks relating to the size of goods which have been held merely descriptive. George Ziegler Co. v. Tom Huston Peanut Co., 37 C.C.P.A. 947, 181 F.2d 237 (1950); Little Tavern Shops v. Davis, 116 F.2d 903 (4th Cir. 1941); Keller, Inc. v. Chicago Pneumatic Tool Co., 298 F. 52 (7th Cir. 1923).
Equally descriptive is the mark “Micro-Precision,” as applied to wheel balancers and weights. Certainly the element “Precision,” as applied to a balancer or balancing weight, conveys merely that the system of balancing is accurate and precise; the term is descriptive, and it has been so held. Precision Apparatus Co. v. Precision Meter Co., 6 Misc.2d 817, 165 N.Y.S.2d 853 (1956).
The addition of the element “Micro” only strengthens the meaning, and denotes that the system is more than ordinarily accurate and precise. It is true that “micro” in this sense appears in no dictionary, and were we grammarians we should perhaps flinch at its use. Be that as it may, we are required to consider standards of meaning not our own, but prevalent among prospective purchasers of the article. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 699 (2d Cir. 1961). And, however barbarous the use, we have no doubt that in the jargon of the trade “micro” functions as little more than an inexact intensified for “precision.”
We think, therefore, that the District Court erred in holding the plaintiff's trademarks ■ non-descriptive. Since no showing as to secondary meaning has been made, the judgment as to the validity of the trademarks must be reversed.
Affirmed in part, reversed in part.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
HESS OIL & CHEMICAL CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Hess Oil & Chemical Corporation, Intervenor.
Nos. 21928, 26681.
United States Court of Appeals Fifth Circuit.
Sept. 2, 1969.
W. D. Deakins, Jr., Charles L. Berry, Houston, Tex., for petitioner Hess Oil & Chemical Corp.; Vinson, Elkins, Weems & Searls, Houston, Tex., of counsel.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, William Wachter, Arthur A. Horowitz, Attys., N.L.R.B., Washington, D. C., for the N.L.R.B.
Chris Dixie, James P. Wolf, Houston, Tex., Jerry D. Anker, Cole & Groner, Washington, D. C., John Tadlock, James J. Cronin, Denver, Colo., for Oil, Chemical and Atomic Workers Intern. Union.
Before COLEMAN and SIMPSON, Circuit Judges, and MEHRTENS, District Judge.
COLEMAN, Circuit Judge:
These cases spring from a common source and will be decided by this consolidated opinion. The order of the National Labor Relations Board, 167 NLRB, No. 8 (1967) will be enforced. The petition for review in No. 26,681 will be denied.
I Prior Proceedings
Proceedings prior to this review may be summarized as follows:
1. Unfair labor practice charge filed against Hess Oil and Chemical Corporation April 2, 1963, alleging that the company violated the National Labor Relations Act by refusing to bargain with the union, in violation of §§ 8(a) (5) and (1), and by engaging in an illegal lockout of its employees at its Corpus Christi refinery;
2. Complaint filed May 15, 1963;
3. The trial examiner finds the company to be in violation of the Act on both counts of the charge and complaint, November 18, 1963;
Decision of the National Labor Relations Board, adopts the trial examiner’s findings, September 16, 1964 ; 4.
5. October 19, 1964, the Board and Hess Oil move this Court to stay further proceedings pending the United States Supreme Court decision in American Ship Building v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855. Stay granted, October 30, 1964;
6. The Board moves the Fifth Circuit for a second stay to allow the Board to consider the impact of American Ship Building. Motion granted, June 2, 1965;
7. The Board issues its Supplemental Decision and Order (August 17, 1967) reaffirming its previous finding on the failure to bargain question but setting aside that part of the earlier decision which held the company to have engaged in an illegal lockout;
8. Hess Oil petitions this Court for a review of the Board order and the Board cross petitions for enforcement. That ease was docketed and calendared here as No. 21,928;
9. June 10, 1968, the Oil, Chemical and Atomic Workers International Union filed a petition in the United States Court of Appeals for the District of Columbia Circuit to review that portion of the Board’s order concerning the lockout. Hess intervened and moved that the union’s petition be transferred to the Fifth Circuit. Motion granted August 19,1968. The case is docketed and calendared here as No. 26,681.
II Facts
On January 27, 1963, Hess Oil and Chemical Corporation purchased the properties of Delhi-Taylor Oil Refining Company, including a refinery at Corpus Christi, Texas. At that time, and for many years prior thereto, the production and maintenance employees at Delhi-Taylor’s Corpus Christi plant were represented, for collective bargaining purposes, by the Oil, Chemical and Atomic Workers International Union.
To prepare for negotiations with the union, H. W. McCollum, a vice-president of Hess, met March 8, 1963, with two officers of the union, W. I. Forrester and J. Elro Brown. At that time, McCol-lum announced that Hess had purchased the Delhi-Taylor refinery and wished to negotiate a new contract with the union. He expressly rejected assumption of the existing collective bargaining agreement between the union and Delhi-Taylor and insisted on an entirely new contract. That Hess had no obligation to assume the previously existing Delhi-Taylor contract is not disputed.
One of the major changes McCollum insisted upon was that the laboratory and warehouse employees at the refinery be excluded from the bargaining unit, as it had previously existed, although it was conceded that these employees appropriately belonged to this unit. McCollum contended that their exclusion was necessary because of certain changes Hess wished to make in the employment structure at Corpus Christi. For example, the laboratory employees, who were not covered by collective bargaining agreements at Hess’s other plants, would periodically be transferred from location to location. Therefore, to place them in a bargaining unit would restrict the company’s freedom to deploy them to other plants. As to the warehouse employees, McCollum stated that Hess intended to retain only one such employee, who would be engaged primarily in record keeping activities.
Another Hess proposal was that the employees at Delhi-Taylor be placed on probation from April 1 to June 1, and that their employment could be terminated during that period without the right to file grievance procedures. Hess, did, however, agree to adopt many of the provisions in the existing contract with Delhi-Taylor, such as vacation and sick leave benefits. Finally, McCollum told the union representatives that the union would have to accept Hess’s suggested contract terms in order for the refinery to remain in operation past April 1, the date it was to take possession from Delhi-Taylor.
Thereafter, the parties met eight times prior to April 1.- McCollum presented Hess’s proposals in writing and offered modifications in the company’s position, but steadfastly declined to change the proposed requirement that the warehouse and laboratory employees be excluded from the bargaining unit. The union rejected all company proposals and insisted, instead, that its contract with Delhi-Taylor be adopted without change for one year.
McCollum submitted a complete contract proposal March 25 which incorporated many of the existing contract provisions. This proposal was, the same day, rejected. Upon learning that the proposal had been rejected, McCollum called the union to determine what it really wanted. He was informed that Delhi-Taylor had refused to turn over certain information requested by the union and was withholding vacation and termination pay from the employees. Brown told McCollum that if he could “get those thieves off his back” [alluding to Delhi-Taylor] an agreement with Hess could probably be reached.
McCollum, eager not to shut the refinery down, met with Delhi-Taylor’s president in New York March 26 and volunteered to pay half of the vacation and termination pay (over $100,000) if Delhi-Taylor would agree to pay the remainder and furnish the information requested by the union. This was eventually accomplished. The union and Hess met twice after McCollum’s meeting with Delhi-Taylor’s president, and the information from Delhi-Taylor was supplied.
However, no contractual agreement was reached, so the Corpus Christi refinery ceased operations April 1. It remained closed until May 7. Hess then recalled most of the employees who had previously worked there.
Following the shut down of the refinery, the union filed charges with the Board, alleging that Hess violated § 8(a) (5) and (1) by refusing to bargain with it and by locking out its employees. The trial examiner found that the company had violated § 8(a) (5) and (1) by insisting on the exclusion of the laboratory and warehouse employees from the bargaining unit and by closing the plant.
The Board agreed with the trial examiner that the company’s insistence on the employee exclusion constituted a refusal to recognize the union as the bargaining agent of those employees and ordered it to bargain with the union as the exclusive representative of all employees in that unit, including the laboratory and warehouse employees, 148 NLRB 1080. The Board found, however, that the “record contains overwhelming evidence that Respondent [Hess] was desirous of entering into a contract with the Union and it engaged in good-faith bargaining to that end”. Furthermore, the Board findings rejected the contention that the company’s position on this issue “served to frustrate collective bargaining on other issues or that the company conditioned execution of an agreement with the Union upon the Union’s agreement to exclude the laboratory and warehouse employees.”
In this initial order the Board agreed with the trial examiner that the closing of the plant constituted an illegal lockout.
Faced with these results, Hess filed a petition to review the Board order. Subsequently, both the Board and Hess filed a motion to stay the proceedings until the Supreme Court should decide American Ship Building Company v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). After that decision was rendered, the Board again moved for a stay to consider its impact on the instant ease. That stay was granted.
The Board filed a supplemental decision and order August 17, 1967, 167 NLRB No. 8. It reaffirmed its earlier finding that the company’s insistence on the exclusion of the warehouse and laboratory employees from the bargaining unit violated § 8(a) (5) and (1). It set aside, however, that portion of the original decision in which it had found that the lockout was illegal.
As previously stated, the company now petitions for review of the Board finding that the company committed an unfair labor practice by insisting upon the exclusion of the warehouse and laboratory employees from the bargaining unit. The union petitions for review of the Board finding that the lockout was not unlawful.
NO. 21,928 — HESS OIL AND CHEMICAL CORPORATION v. NATIONAL LABOR RELATIONS BOARD
Hess contends that it is not guilty of violating § 8(a) (5) and (1) as to the proposed exclusion of the laboratory and warehouse workers because that issue was a mandatory subject of bargaining and the proposal did not bring about the bargaining impasse between the company and the union. It is said that this is true although Hess concedes that a unit of production and maintenance employees at the Corpus Christi refinery, including warehousemen and laboratory employees, was an appropriate unit. We must reject this argument.
It runs as follows: If this issue was a mandatory subject of bargaining, Hess had a right to insist upon it to impasse. See N.L.R.B. v. American Compress Warehouse, Division of Frost-Whited Company, 5 Cir., 1965, 350 F.2d 365; cert. denied, 382 U.S. 982, 86 S.Ct. 558, 15 L.Ed.2d 472. On the other hand, if it were merely a voluntary subject of bargaining, it still had a right to bargain on the subject but could not insist upon it to impasse. See N.L.R.B. v. Floridan Hotel of Tampa, Inc., 5 Cir., 1963, 318 F.2d 545. That is to say, one party could not condition acceptance of the collective bargaining agreement upon the other party’s acceptance of a non-mandatory subject of bargaining, N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). Applying those well established rules to the instant case, the company argues, the following result is accomplished: If the exclusion of certain employees is a mandatory bargaining subject, the company could insist upon it to impasse, and by so doing there would be no failure to bargain. If, however, this is only a voluntary subject of bargaining, the Board specifically found that the company’s acceptance of the contract with the union was not dependent on the union’s acceptance of the exclusion of the warehouse and laboratory employees from the bargaining unit and that the company did not insist upon this subject to the point of impasse. Consequently, the company, under the Borg-Warner doctrine, still did not violate the Act. See, also, Oil, Chemical and Atomic Workers International Union, Local 3-89 v. N.L.R.B., D.C. Cir., 1968, 405 F.2d 1111, 1116.
The fatal flaw in this argument is that in the context now before us the issue was neither a mandatory nor a voluntary subject for bargaining.
Section 9(a) of the Act provides:
“Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for/ such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” [Emphasis added].
Pursuant to that section, it has been often held that an attempt [to impasse] to restrict bargaining to only certain members of an appropriate unit or to expand bargaining to include those beyond an appropriate unit is an unfair labor practice. In one instance, for example, the employer wanted to recognize the union as the bargaining agent only for union members. In rejecting the employer’s attempt the court held that
“the recognition required by 9(a) is not a bargaining matter as petitioner sought to make it. When it was disclosed to petitioner that Local 226 represented a majority of the employees in the appropriate unit, (this was at no time questioned by petitioner) the obligation was then fixed upon it to recognize the Local as the sole and exclusive bargaining agent, not only for the members of the Union, but for all employees. In place of complying with this statutory requirement, petitioner made it the subject of a long and extended bargaining process. Subsequent to the time when demand for recognition was made, petitioner, at all times, has been in default of its statutory obligation. Neither can the consequences of its refusal to grant complete recognition be dissipated by the fact — -if it be a fact— that it bargained with the Union on all other matters in dispute. In our view of the situation, there could be no genuine bargaining as contemplated by the Statute until complete recognition had been granted as the Act requires. Notwithstanding the fact that it agreed not to bargain with any other group or individual, its bargaining with Local 226, while limiting its recognition solely to members of the Union, made such bargaining abortive and of little, if any, effect.”
McQuay-Norris Manufacturing Company v. N.L.R.B., 7 Cir., 1940, 116 F.2d 748, 751. See, also, United Biscuit Company v. N.L.R.B., 7 Cir., 1942, 128 F.2d 771.
In Douds v. International Longshoremen’s Association, 2 Cir., 1957, 241 F.2d 278, the court pointed out that there was a clear distinction between “private bargaining over conditions of employment and administrative determination of the unit appropriate for bargaining”:
“The parties cannot bargain meaningfully about wages or hours or conditions of employment unless they know the unit of bargaining. That question is for the Board to decide on a petition under Section 9(c) of the Act, and its decision is conclusive on the parties (citation omitted), although the decision may subsequently be changed.”
241 F.2d at 282. The court further declared that the only process of changing the appropriate bargaining unit
“not permitted by the Act is one that denies the Board this ultimate control of the bargaining unit and disrupts the bargaining unit itself. This is precisely what occurs when, after the Board has decided what the appropriate bargaining unit is, one party over the objection of the other demands a change in that unit. Such a demand interferes with the required bargaining ‘with respect to. rates of pay, wages, hours, and conditions of employment’ in a manner excluded by the Act. It is thus a refusal to bargain in good faith * * *."
Id., 241 F.2d at 283.
Finally, in N.L.R.B. v. Southland Cork Company, 4 Cir., 1965, 342 F.2d 702, the Board had certified the union as the bargaining agent for all production and maintenance employees at the company’s plant, but the company insisted that the recognition clause in the contract be restricted to permanent employees. The court held that the company’s attempt to change the unit was a violation of § 8(a) (5) “since the Act required it to accord recognition to the union as representative of all the employees in the unit”, 342 F.2d at 706. See, also, United Aircraft Corporation (Hamilton Standard Division) v. N.L.R.B., 2 Cir., 1964, 333 F.2d 819; International Brotherhood of Electrical Workers, 116 N.L.R.B. 1792 (1958); enforced N.L.R.B. v. International Brotherhood of Electrical Workers, 5 Cir., 1959, 266 F.2d 349.
We hold that an issue concerning the construction of an appropriate unit so as to exclude certain members from that unit is not a subject for bargaining and an insistence upon it constitutes a violation of § 8(a) (5). The fact that the unit involved here was a contractual unit rather than one certified by the Board should not lead to a different result, since the duty to bargain depends on neither a Board election nor certification, N.L.R.B. v. Movie Star, Inc., 5 Cir., 1966, 361 F.2d 346.
NO. 26,681 — OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION v. NATIONAL LABOR RELATIONS BOARD.
The trial examiner found that, after hard but good faith bargaining, negotiations between Hess and the union reached an impasse March 28, 1963, and that Hess’s lockout imposed April 1 was designed to bring economic pressure on the union to compel it to sign an agreement on Hess’s terms. In accordance with the law existing at the time, he determined that the lockout violated the Act. However, the Board, in reviewing the case, after the Supreme Court decision in American Ship Building Company v. N.L.R.B., supra, reached the opposite conclusion. The union now contends that because the Board here found that Hess violated § 8(a) (5) by insisting on the exclusion of the warehouse and laboratory employees from the bargaining unit, American Ship Building is not dispositive and the lockout was illegal.
In American Ship Building, the sole issue before the Court was whether an employer violates the Act, after a bargaining impasse has been reached, by temporarily shutting down his plant “for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position”, 380 U.S. at 318, 85 S.Ct. at 967. It was held that a lockout for that purpose did not violate the Act.
As to the argument that an offensive lockout was a violation of § 8(a) (1), the Court found that such use was in no way “inconsistent with the right to bargain collectively or the right to strike,” 380 U.S. at 310, 85 S.Ct. at 963. And as to the allegation that a lockout for such purpose violated § 8(a) (3), the Court first noted that an § 8(a) (3) violation turned on employee motivation. The Court then proceeded to examine the employer’s motive:
“As this case well shows, use of the lockout does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union membership as such. The purpose and effect of the lockout were only to bring pressure upon the union to modify its demands. Similarly, it does not appear that the natural tendency of the lockout is severely to discourage union membership while serving no significant employer interest. * * * It is true that the employees suffered economic disadvantage because of their union’s insistence on demands unacceptable to the employer, but this is also true of many steps which an employer may take during a bargaining conflict, and the existence of an arguable possibility that someone may feel himself discouraged in his union membership or discriminated against by reason of that membership cannot suffice to label them violations of § 8(a) (3) absent some unlawful intention. * * ”
380 U.S. at 312-313, 85 S.Ct. at 964.
In light of American Ship Building, it has been held that in the absence of any evidence that the employer was hostile to the union, or had attempted to interfere with the union’s rights to collective bargaining, or had used the lockout “in the service of designs inimical to the process of collective bargaining”, or that the layoff was intended to discipline employees for supporting the union, a lockout is not an unfair labor practice, Detroit Newspaper Publishers Association v. N.L.R.B., 6 Cir., 1965, 346 F.2d 527, 531.
In a case heavily relied upon by the Board in the instant case, the company sought agreement on a “pension insurance” matter, which was not a subject of mandatory bargaining. A lockout followed. The Board, however, found that the company had not insisted to the point of impasse on the union’s acceptance of the non-mandatory subject and then locked out its employees to accomplish that result. Rather, the Board found
“that the Company’s conduct during the negotiations evidenced a desire to arrive at a settlement on the terms for a new basic agreement, that the pension-insurance proposals were offered to facilitate settlement, and that the lockout, ‘after impasse was reached on issues other than the pension-insurance matter,’ was permissible economic pressure in support of a legitimate bargaining position under American Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965).”
Oil, Chemical and Atomic Workers International Union, Local 3-89 v. N.L.R.B., D.C.Cir., 1968, 405 F.2d 1111, 1116. On review, the Court found substantial evidence to support the Board’s conclusion that the impasse was not a result of the company’s insistence on the non-mandatory bargaining subject and affirmed the Board’s decision, 405 F.2d at 1116.
It has been held, however, that a lockout is illegal where the evidence strongly supports the conclusion that the purpose of the lockout is to prevent the employees from freely determining their bargaining representative and to keep the employees’ present representative subservient to the employer, Tonkin Corporation of California v. N.L.R.B., 9 Cir., 1968, 392 F.2d 141. In addition, the Board has held a lockout to be illegal where the impasse which had been reached resulted from the employer’s refusal to negotiate in a lawful manner and not from a good faith disagreement over economic matters, American Stores Packing Company, Acme Markets, Inc., 158 N.L.R.B. 620 (1966).
The Board in this case made the following findings: (1) the insistence on the exclusion of the warehouse and laboratory workers from the bargaining unit did not frustrate collective bargaining on other issues and did not contribute to an impasse on the other issues; (2) there was no evidence that Hess conditioned the signing of a contract upon the union’s acceptance of Hess’s proposal for the bargaining unit exclusion; (3) the union’s rejection of Hess’s contract proposals was due neither “solely” nor “primarily” to Hess’s insistence on the exclusion of the warehouse and laboratory employees; (4) that Hess would have locked out its employees even had the bargaining unit issue been withdrawn from negotiations; and (5) that the lockout was not prompted by anti-union animus. These findings are unquestionably supported by substantial evidence.
In No. 21,928 the order(s) of the Board will be enforced.
In No. 26,681 the petition for review is denied.
. Supplementing 148 NLRB 1080 (1963).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Kurt Karl Friedrich HEGERICH, Appellant, v. Albert DEL GUERCIO, District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.
No. 15577.
United States Court of Appeals Ninth Circuit.
May 12, 1958.
Harry Wolpin, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Burton C. Jacobson, Asst. U. S. Attys., Los Angeles, Cal., for ap-pellee.
Before CHAMBERS and BARNES, Circuit Judges, and CHASE A. CLARK, District Judge.
PER CURIAM.
Hegerich is a national and citizen of Germany. He was properly admitted at New York City on February 18, 1956. His permit authorized him to stay until May 20, 1956. With his passport was a visa from the United States consul in Munich, Germany, reciting that he had until May, 1957, to apply for permanent admission to the United States.
On May 23, 1956, he went for the second time to the immigration and naturalization office in Los Angeles to clear up his status, to seek extension of the time of his stay. The office’s reply to his request was to arrest him on the spot. Subsequently, administrative proceedings were held to determine his deportability and to consider his application for voluntary departure. The result was an order directing his deportation and denying his application for voluntary departure.
The administrative proceedings were upheld on review by the district court. This appeal followed.
As to deportability, the facts would seem to positively support the administrative conclusion. However, as tc the ruling on voluntary departure which would affect Hegerich’s right to apply for readmission, this court is of the opinion that there was an abuse of discretion. No suggestion is made that appellant is not a person of good moral character. His overstaying was de minimis in time. Blunderingly, he was trying to comply with the law. It is clear that his conduct was neither slick nor foxy. In this field of voluntary departure, ordinarily action unfavorable to the deportee must be upheld. But the government, as it should, seems to concede that there can be a case where the denial of voluntary departure can be an abuse of administrative discretion. This court holds that this is it.
Reversed for proceedings which will permit appellant’s voluntary departure.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
EMPIRE TRUST CO. et al. v. EQUITABLE OFFICE BLDG. CORPORATION.
No. 160, Docket No. 20853.
Circuit Court of Appeals, Second Circuit.
April 9, 1948.
Olin, Murphy & Redmond, of New York City (T. Fergus Redmond, of New York City, of counsel), for Empire Trust Co., appellant.
Wagner, Quillinan, Wagner & Tennant, of New York City (Sidney R. Nussenfeld, of New York City, of counsel), for Granger Committee for Debenture Holders, appellant.
Scribner & Miller, of New York City (Louis G. Bernstein, of New York City, of counsel), for Amott Debenture Holders’ Protective Committee, appellant.
Wickes, Riddell, Bloomer, Jacobi & McGuire, of New York City (Herman E. Riddell and Milton I. Newman, both of New York City, of counsel), for Equitable Office Building Corporation, appellee.
Henry S. Hooker, of New York,City (Irving L. Schanzer, of New York City, of counsel), for J. Donald Duncan, Trustee of Debtor, appellee.
Roger S. Foster, Sol., and Sidney H. Willner, Associate Sol., both of Philadelphia, Pa., George Zolotar, Sp. Counsel, of New York City, and Alexander Cohen, of Philadelphia, Pa., Atty., for Securities and Exchange Commission, appellee.
T. Roland Berner, of New York City, for stockholder appellees.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
SWAN, Circuit Judge.
The Modified Plan of Reorganization provides for payment of the debentures in full with interest at the rate of 5% per annum to the date of consummation. The appellants contended below and reassert here that the debenture holders are entitled to interest at the rate of 6% per annum from June 1, 1941 (the maturity date by acceleration), on the principal of the debentures, and to interest at 5% per annum on 'the unpaid interest coupons attached to the debentures. Their appeals are from those portions of the orders of September 17, 1947, and October 24, 1947, which limited interest on the principal to 5% and denied any interest on the coupons. The district court wrote no opinion.
Little need be said as to the claim of 6% interest on the principal. Each debenture contains a promise to pay the principal on May 1, 1952, “and to pay interest thereon in like gold coin at the rate of five per centum (5%) per annum from May 1, 1917, on presentation and surrender * * * of the annexed coupons as they severally become due, on the first days of May and November in each year, until such principal shall be paid.” Interest was not paid on May 1, 1941, the debtor’s proceeding for reorganization under Chapter X of the Chandler Act, 11 U.S.C.A. § 501 et seq., having been filed April 10, 1941. Subsequently, pursuant to court order in the reorganization proceeding, the interest instalments due May 1 and November 1, 1941, were paid. The confirmed plan now before us provides for payment of 5% interest from November 1,1941. The appellants assert that the acceleration clause in Article VII of the Trust Indenture caused all debentures to become due on June 1, 1941, and that they are entitled to the statutory rate of 6% interest thereafter. Assuming without decision that the clause operated automatically, this would not render inapplicable the promise to pay interest at 5% per annum “until such principal shall be paid.” The contractual rate was to continue until p-ayni'cnt, not until the debentures matured, whether by lapse of time or acceleration. To support the conclusion that the contract rate must control it is sufficient to cite In re Realty Associates Securities Corp., 2 Cir., 163 F.2d 387, 389, certiorari denied sub nom. Manufacturers Trust Co. v. Realty Associates Securities Corp., 332 U.S. 836, 68 S.Ct. 218.
The claim of interest on overdue interest coupons is less simple. The interest coupon itself says nothing about interest after its maturity. But Article VII of the Trust Indenture, which deals with the trustee’s rights and powers after default, provides that the trustee may sell the collateral and, after deducting the expenses of sale and other charges, “the Trustee shall apply the residue of the proceeds, together with all cash held by it * * * to the payment, first, of all overdue coupons representing interest upon said debentures, in the order of their maturity, with interest thereon at the rate of five per cent, per annum, and then of the interest accrued on said debeiltures not represented by overdue coupons, and finally, of the principal of all said debentures, without preference or priority as between coupons of the same date or as between debentures; * * * ” If this provision be confined, as it literally is, to the payment of interest on overdue coupons only if the trustee has made a sale of the collateral, it would mean that the rights of a coupon holder who himself collects an overdue coupon from the obligor are different from his rights when the trustee collects for him. If he collects it himself he will either get 6% interest after' maturity, on the assumption that the law of New York treats an overdue coupon like a defaulted promissory note, or, on the contrary assumption, he will get only the face of the coupon since it contains no promise to pay interest after maturity; but if the trustee collects, the obligor must pay interest on overdue coupons, assuming that the law of New York recognizes such an obligation as valid. We cannot accept such an interpretation of the contract. As we said in Realty Associates Securities Corp., 2 Cir., 163 F.2d 387, 390, “It would introduce an inconsistency into the debtor’s obligations which the parties cannot reasonably be believed to have intended.” Consequently, we think the sale-of-collateral clause should be construed as equivalent to a covenant to pay interest at 5% per annum on overdue coupons. This presents the questions about which most of the argument has revolved, namely, whether such a covenant is valid under New York law, and, if it is, whether it can be recognized in a court of bankruptcy in view of Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237.
In Stewart v. Petree, 55 N.Y. 621, 623, the court stated that an agreement in advance for the payment of interest upon interest cannot be enforced, “for the reason that such an agreement is regarded in this State as against public policy.” Similar statements of the New York law may be found in many later cases. Thus in New-burger-Morris Co. v. Talcott, 219 N.Y. 505, 510, 114 N.E. 846, 847, 3 A.L.R. 287, Judge Cardozo said that “The rule is settled that a promise to pay interest upon interest is void if made at a time before simple interest has accrued,” citing Young v. Hill, 67 N.Y. 162, 23 Am.Rep. 99. And with respect to interest coupons, the same judge declared in Continental Securities Co. v. New York Central & H. R. R. Co., 217 N.Y. 119, 125, 111 N.E. 484, 486: “It makes no difference that the promise to pay interest is represented by coupons. Until detached and separately negotiated, a coupon is merely an incident of the bond without greater force than any other promise for the payment of interest,” citing Williamsburgh Savings Bank v. Town of Solon, 136 N.Y. 465, 481, 32 N.E. 1058, 1062. The Williamsburgh case, however, is not a precisely controlling authority because in that case there was no promise by the borrower to pay interest on the overdue coupons, while in the case at bar we have construed the sale-of-collateral clause of the Trust Indenture as equivalent to such a promise. No decision by a New York court which is exactly in point has been discovered, but the question whether a promise to pay interest on overdue coupons is valid under New York law has been carefully considered in several federal cases. In American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., D.C.,S.D.N.Y., 11 F.Supp. 418, 419, 420, Judge Mack expressed the view that such a promise was unenforceable. Nevertheless he allowed interest to the coupon holders under the doctrine of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865. Thereafter the question was presented in the same receivership to Judge Patterson, who was constrained by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, to determine the New York rule and he reached a conclusion contrary to that expressed by Judge Mack. American Brake Shoe & Foundry Co. v. Inter-borough Rapid Transit Co., D.C., 26 F.Supp. 954. It is upon his decision that the appellants rely in contending that they are entitled to interest on the overdue coupons attached to their bonds.
Judge Patterson was of opinion that the New York cases which declared that a promise to pay interest on interest was against public policy were limited to agreements to pay technical compound interest and were not controlling where the agreement was for simple interest on overdue coupons. Great as is our respect for any judicial pronouncement of Judge Patterson we are compelled to differ with his view of the New York law on this subject.. As we read the cases, the courts of that state have used the terms “interest on interest” and “compound interest” interchangeably and have declared that either type of agreement made in advance is violative of public policy. Thus, in the Williamsburgh Savings Bank case, 136 N.Y. 465, 480, 32 N.E. 1058, 1062, the court said that the allowance of interest upon the coupons “results in an award of compound interest, which we have held not to be recoverable, except upon some new and independent agreement, made upon sufficient consideration.” Other cases involving true interest on interest situations are collected in Judge Nordbye’s able discussion of the New York law in In re Wisconsin Cent. Ry. Co., D.C.Minn., 63 F.Supp. 151, 154. See also Judge Clancy’s dictum in Transbel Inv. Co. v. Roth, D.C., S.D.N.Y., 36 F.Supp 396, 399, that interest on interest “differs from compound interest not in character or quality but only in quantity.” The Circuit Court of Appeals for the Sixth Circuit in In re American Fuel & Power Co., 151 F.2d 470, 476-478, after a thorough survey of the cases concluded that a promise to pay interest on overdue interest coupons is void under New York law. With this view we agree.
The Sixth Circuit case was affirmed sub nom. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, where the majority of the court held it unnecessary to pass upon the validity of the provision for the payment of interest on interest. The concurring opinion, however, accepted the finding of the Circuit Court of Appeals that in New.York the undertaking to .pay interest was void. Basing their argument on the majority opinion in the Vanston case, the appellees argue that even if the promise to pay interest on overdue coupons was valid under New York law it would not be recognized in bankruptcy. On the other hand, the appellants attempt to distinguish the Vanston case because there allowance of the interest on interest to the first mortagage bondholders would have reduced the amount subordinate creditors would receive in the reorganization, while in the case at bar it would merely reduce the sum payable to the debtor’s shareholders.- Whether the attempted distinction is sound we need not determine, since we have already decided that the promise to pay interest on interest created no valid obligation to holders of unnegotiated coupons.
The appellants’ further point that the plan of reorganization is unfair because it does not require the debtor to pay to the indenture trustee for debenture holders the interest coupons on mortgage bonds pledged as collateral, is without merit. Since the debenture holders are to be paid in full, they have no further interest with respect to the collateral.
The orders on appeal are affirmed.
In Knight v. Wertheim & Co., 2 Cir., 158 F.2d 838, 844 and Dana v Wertheim & Co., 2 Cir., 158 F.2d 982, this court determined the right of stockholders to present an amendment to an earlier plan of reorganization by way of an offer which would produce enough cash to pay off the debentures, principal and interest.
Mr. Justice Frankfurter, in his concurring opinion in the Vanston case, 329 U.S. at page 171, 67 S.Ct. at page 244, refers with apparent approval to Judge Mack’s view of New Fork law, as well as to Judge Cardozo’s dictum that “a promise to pay interest upon interest is void.”
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc2
|
18
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Plaintiff-Appellee v. Helen Phyllis MILLER, Alfred A. Renzella, Ray Giancola, Alfons Bilello, and Angelo Vaccarro, Defendants-Appellants.
No. 14342.
United States Court of Appeals Sixth Circuit.
April 25, 1961.
Daniel W. Davies, Newport, Ky., for appellants.
Moss Noble, Asst. U. S. Atty., Lexington, Ky., Jean L. Auxier, U. S. Atty., and Moss Noble, Asst. U. S. Atty., Lexington, Ky., on brief, for appellee.
Before MILLER, Chief Judge, and SIMONS and MARTIN, Circuit Judges.
ORDER.
Appellants, Helen Phyllis Miller, and two male defendants, Alfons Bilello and Angelo Vaccarro, were each convicted on two counts for violation of United States Code, Title 18, Sec. 371 and also Title 18, Sec. 659 and were sentenced respectively for two years on each count, to run concurrently.
The Appellant Alfred A. Renzella was convicted of conspiracy and sentenced to 18 months imprisonment and Ray Gian-cola was convicted of conspiracy and sentenced to one year and one day in prison. All the convictions involved the violation of, or the conspiracy to violate, the code sections condemning as a crime buying, receiving, or having in possession goods which were moving as, or a part of, or which constituted an interstate shipment of, freight knowing the goods to have been stolen.
The conspiracy counts charged conspiracy to violate this code section.
After a review of the record setting forth the material evidence in the case, we think there was substantial evidence to support the conviction of the appellants of the offenses of which they were respectively found guilty by the verdict of the jury. We find, moreover, that no reversible error was committed by the trial Judge in his rulings on the admissibility of evidence, in his instructions to the jury as to the applicable law, or in any other ruling upon the trial of the case.
Therefore the judgment and sentence as to each of the five appellants is affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
RANKIN v. COX et al.
No. 9873.
Circuit Court of Appeals, Eighth Circuit.
April 17, 1934.
Glen H. Foe and Harold J. Requartte, both of Lincoln, Neb. (Maxwell V. Beghtol and Thomas S. Allen, both of Lincoln, Neb., on the brief), for appellant.
C. C. Fraizer, of Aurora, Neb. (Craft, Edgorton & Fraizer, of Aurora, Neb., on the brief), for appellees.
Before STONE and WOODROUGH, Circuit Judges, and OTIS, District Judge.
WOODROUGH, Circuit Judge.
Suits in equity (consolidated for trial) were brought by the trustee of Joshua Cox, bankrupt, to set aside two $2.0,000 real estate mortgages given by the bankrupt more than four months prior to bankruptcy, but recorded within the four-month period. It is clear that the mortgages were given for full present consideration passing to the bankrupt at the time and were not preferences voidable under section 60a and section 60b of tile Bankruptcy Act, as amended, 11 US CA § 96 (a, b). But the claim pressed upon the special master and the trial court and now insisted upon rests on the allegations of the trustee's petitions that the mortgages wer-e given “with the collusive agreement or understanding” that they “would be withheld from record * *; that the specific purpose of withholding them from record was to prevent the impairment of tho credit of said Joshua. Cox and to enable him, to borrow money upon the apparent ownership of: said lands free of encumbrance ® * *; that said mortgages were given to hinder, delay or defraud the creditors of said Joshua Cox and had. that effect and result. ® * * ” That the mortgages “constituted a secret lien upon the real estate for the purpose of preserving the credit of said Joshua Cox by concealing the fact that said Joshua Cox was in straitened financial condition and in fact insolvent.” , That “by reason of the fact that the mortgages did not appear of record but were, pursuant to said scheme and agreement, withheld from record * ® * many creditors whose claims have been duly filed and allowed in the bankruptcy proceeding, relied upon the records * * * and being misled by the fact that tho said mortgages were not recorded, extended credit to the said bankrupt between the respective dates of the delivery of said mortgages and the date of the filing thereof in the belief that he was the owner of the real estate * * * free and clear of encumbrance by” tho mortgages. “That the mortgages constitute fraudulent transfers,” voidable at the suit of the trustee.
The master in chancery reported in favor of sustaining the mortgage liens and the District Court affirmed, dismissing the suit. The trustee in bankruptcy appeals.
Under the Bankruptcy Act the trustee had the right to avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided (section 70e of the Act, 11 1TSCA § 110 (e), including the right accorded creditors under the state law to avoid transfers made to hinder, delay, or defraud them. Section 36-401, Comp. St. Neb. 1929, Shreck v. Hanlon, 66 Neb. 451, 92 N. W. 626., and Id., 74 Neb. 264, 104 N. W. 193; Sheldon v. Parker, 66 Neb. 610 and 634, 92 N. W. 923, 95 N. W. 3015. It was conceded in the trial court that under the Nebraska statute, as construed by the Supreme Court, real estate mortgages are not required to be recorded except as against subsequent purchasers and incumbrancers. Stocker v. Church, 113 Neb. 639, 204 N. W. 398; Carey v. Donohue, 240 U. S. 430, 36 S. Ct. 386, 60 L. Ed. 726, L. R. A. 1917A, 295; Blair State Bank v. Stewart, 57 Neb. 58, 77 N. W. 370. And none of the bankrupt’s creditors represented by the trastee was a subsequent purchaser or incumbrancer.
Of the two mortgages attacked in these suits, one was given to the bankrupt’s nephew, Ralph E. C'ox, and the other to the bankrupt’s brother James.
We consider first the mortgage to the nephew. The bankrupt testified that there was ap express oral agreement that the mortgage should not be recorded. The nephew testified to the contrary that there was no such agreement or understanding. The nephew was to some extent corroborated by the witness Mr. Charles E. Stroman, who was present at conferences where the loan was discussed and stated .that there was nothing said in his presence about an agreement to refrain from recording or withholding the mortgage from record that he could recall. He thought there was nothing said about withholding from record. The import of the findings of the special master who saw and heard the witnesses is that the alleged agreement was not proven; and the trial court thought the evidence clearly preponderated against the trustee on the question of fraudulent agreement to withhold the recording of this mortgage. But the trustee insists that the proven circumstances under which this mortgage was given and withheld from record compel the conclusion that the lien was fraudulent and voidable at his instance, notwithstanding the conflict as to what was said at the time of the negotiation for and execution of the moi-tgage. We have, accordingly, examined the testimony and find as the facts which appear to us controlling:
That the bankrupt, Joshua Cox, was the owner of considerable real estate and engaged in farming on shares with his tenants on farm land and in feeding live stock. He was the president and active in the management of the American State Bank of York, Neb., for fifteen years before its failure in November, 1929; owning a majority of the stock and transacting all of his business through the bank. He also owned stock in the American State Bank Building Association and the American Trust Company, institutions closely affiliated with the hank of which he was president. His two nephews were associated with him in the American State Bank of York; Ralph E. Cox as cashier and a member of the board of directors and Prank H. Cox as assistant. His brother James, father of. Ralph E. and Prank H. Cox, was a stockholder in the bank, but not otherwise associated or interested in the bankrupt's enterprises. The bankrupt was also the president of and in control of a bank ■at Polk, Neb., in the adjoining county, in which neither his brother nor his nephews' had any direct interest. Although the bankrupt was at all times largely indebted to both secured and unsecured creditors, we adopt the finding of the trial court upon the conflicting testimony that the bankrupt was not insolvent at the time of the transactions involved. It appears that in May, 1929, the bankrupt requested his nephews to loan him $20,000 to enable him to fix up the reserve of his bank at Polk, the bank examiners having reported $38,000 of the paper of that bank to be bad or doubtful. There had been friction between the bankrupt and his nephews because of the bankrupt’s insistence upon putting paper from the Polk bank into the American State Bank of York, and the relations between the kinsmen were strained. The bankrupt disclosed the necessity he was under to put money into his Polk bank to prevent its failing and also represented that the failure of the Polk bank would bring a ran on the American State Bank, in which the bankrupt, his brother, and his two nephews had a common interest. The nephews had no ready money to loan but raised the $20,000 on Erank’s personal credit and resources and loaned the money to the bankrupt for the term of one year at 7 per cent., taking the mortgage in controversy as security. The understanding was that the bankrupt would shortly be able to and would sell some of his lands and repay the loan. Erank H. Cos testified that he had handled mortgages for the American State Bank for three or four years and that the bank had always filed them of record. He did not file this mortgage for more than four months after it was given, and 1ns only explanation was “that it was just negligence.” The explanation was disingenuous. The transaction was of g-reat importance to the nephews and the major incidents of it were forced sharply upon their consideration.
But it does not necessarily follow that the trial court was wrong in concluding that there was no understanding or agreement to withhold the mortgage from record. Although the bankrupt expected that it would not be recorded as appears from the fact that he made property statements for credit declaring that there were no recorded mortgages against the lands, and did so deliberately, in the confidence that the nephews would not record it, the evidence shows that the real reason why they did not rtxiord the mortgage was because, as experienced bankers, they feared that such recording would injure the American State Bank in which all of the parties to ihe transaction had a vitally important interest. The bankrupt, as president of the bank and an active business man, was prominent in Hit! community and the recording of a $20,000 mortgage on his land would inevitably stir up unfavorable discussion of the bank and its affairs. The evidence refutes any possible inference that the loan was made by the nephews out of personal consideration for the uncle. They made it solely to enable him to save liis Polk bank and thereby relieve and safeguard the American State Bank. We find no testimony in the record that brings home to the nephews any intent on their part to bolster up their uncle’s credit for liis personal advantage. Although it is proven that they had access to and inspected the uncle’s bank account at the American State Bank where lie transacted liis business, it is not shown that they knew of any transactions contemplated by their uncle in which he would require or use the appearance of credit afforded him by liis record ownership of the lands mortgaged to them.
It is trae, he did misuse the appearance of land ownership in himself and incurred obligations by making certain of the creditors believe that he owned the lands clear, but we, are not persuaded that such creditors or the bankruptcy trustee for them are entitled, under Nebraska law, to have the mortgages avoided.
It results in every case where a mortgage is given by the record owner of land and withheld from record that the debtor’s real condition is not what it seems to be on the records. Where he stays in possession, those who extend him credit in reliance on the appearance and on the record may lose, bnt the Nebraska recording laws do not purport to guarantee against all such loss. The laws do protect subsequent innocent purchasers or incumbrancers of the same lands, and regardless of the equities, accord to those who first file their instruments priority over late comers. So far as the letter of the statute is co r cerned, there is no other safeguard against frauds provided. Belief against abuse of the recording laws is entirely a creature of equity and equity assumes to relieve only against such abuses as amount to a fraud upon those in whose behalf it is asserted.
Where it can be shown that a mortgagee has withheld his mortgage from record under an agreement so to do and with the intent to enable the mortgagor to contract obligations on the faith of his seemingly clear ownership and so work a fraud upon creditors, there is a fraud to which the mortgagor and moitgagee are alike parties. There is a remedy in equity for the fraud to be accorded by avoiding the lien of the mortgage at the instance of any creditor so defrauded. Wo think the true rule is as stated by Judge Burton in Rogers v. Page (C. C. A.) 140 F. 506, page 606:
“ * * * The mere fact of an agreement to withhold (a real estate mortgage) from record is not of itself such evidence of a fraudulent purpose as to constitute fraud in law. It is, however, a circumstance constituting more or less cogent evidence of a want of good faith., according to the particular situation of the parties and the intent as indicated by all of the facts and circumstances of the particular case. 14 A. & Eng. Enc. Law, p. 526; Story, Eq. § 363; Bigelow on Fraud, p. 88 et seq.; Brown v. Easton (C. C.) 112 F. 592; Corwine v. Thompson N. Bank, 105 F. 196, 44 C. C. A. 442; Cadogan, v. Kennett, 2 Cowp. 432; Davis v. Schwartz, 155 U. S. 633, 639, 15 S. Ct. 237, 39 L. Ed. 289; Blennerhassett v. Sherman, 105 U. S. 100, 117, 26 L. Ed. 1080; Hafner v. Irwin, 23 N. C. 490; Hilliard v. Cagle et al., 46 Miss. 309.”
Tested by this rule, an understanding between the parties in this case that the mortgage would not be recorded would undoubtedly have been an important circumstance for consideration, but not determinative that the conduct of the nephews of the bankrupt was in fraud of the creditors represented by the trastee. As it does not appear that the nephews considered their uncle to be insolvent or that they had any reason to believe that he would engage in any transactions upon false pretenses as to his means, or that he would incur any obligations beyond his ability to fulfill; and as it is shown that the nephews loaned him their money in good faith upon the expectation that he would put his bank in Polk in a solid and solvent condition and that he would shortly sell some land and pay them back, with reason to expect benefit to their own bank and harm to no one, we are not persuaded that there was fraudulent withholding from record upon agreement in bad faith towards any of the creditors represented by the trustee in bankruptcy.
It is contended for the trustee that a withholding of the mortgage from record pursuant to understanding between the parties should be deemed conclusive evidence of fraud upon the bankrupt's subsequent creditors, and the following cases are cited: Hodiamont Rank v. Livingstone (C. C. A.) 35 F. (24) 18; McAtee v. Shade (C. C. A.) 185 F. 442; Dobson v. Snider (C. C.) 70 F. 10; National Bank of Athens v. Shackelford (C. C. A.) 208 F. 677; Id., 239 U. 5. 81, SS S. Ct. 17, 60 L. Ed. 158; In re Duggan (D. C.) 182 F. 252; In re Duggan (C. C. A.) 183 F. 405; Clayton v. Exchange Bank of Macon (C. C. A.) 121 F. 530; Mitchell v. Mitchell (D. C.) 147 F. 280; Fourth National Bank of Macon v. Willingham (C. C. A.) 213 F. 219; Crothers v. Soper et al. (C. C. A.) 10 F.(2d) 793; Davis v. Cassels (D. C.) 220 F. 058; Manders v. Wilson (C. C. A.) 235 F. 878; Jeggle v. Mansur (C. C. A.) 17F.(2d) 729; Rogers v. Page (C. C. A.) 140 F. 595; In re National Boat & Engine Co. (D. C.) 216 F. 208, 209; In re Lamie Chemical Co. (C. C. A.) 295 F. 24; Peterson v. Mettler (D. C.) 198 F. 938; Ash v. Honig (C. C. A.) 62 F.(24) 793. We find that none of the cited Nebra.ska cases sustains the doctrine. Careful consideration of each of the other cases convinces that each turned upon the particular facts presented in the case, and that none is in conflict with the rule as we have quoted it from the statement by Judge Lurton in Rogers v. Page, supra, except that National Bank v. Shackelford; Clayton v. Exchange Bank and In re Duggan, supra, were decided upon a statute of Georgia sufficiently different from the Nebraska statute to distinguish the cases. The other eases in which the mortgages were given without consideration or without present consideration, or where there were acts amounting to estoppel by the mortgagee, are not controlling here.
The decree sustaining the lien of the mortgage given by the bankrupt to his nephew was, therefore, not esroneous.
As to the other $20,000 mortgage in controversy, it appears that the brcther of the bankrupt to whom it was given died before the trial and the question is first presented whether the bankrupt was competent t0 testify to the relevant conversations and transactions between them under the Nebraska statute. The statute provides:
Section 20-1202, Compiled Statutes oi~ Nebraska, 1929:
"No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless the evidence of the deceased person shall have been taken and read in evidence by the adverse party in. regard to such transaction or conversation or unless such representative shall have introduced a witness who shall have testified in regard to such transaction or conversation, in which case the person having suck direct legal interest may be examined in regard to the facts testified to by such deceased person or such witness, but shall not be permitted to further testify in. regard to such, transaction or conversation. (Code § 329, B.. S. p. 449; 1888, p. 328; Ann. 1314; Comp. 6882; B.. S. 1913, 7894; C. S. 1922~ 8835.)"
The bankrupt's testimony was taken by the special master over objection to the competency of the witness under the statute, but the trial court excluded the testimony from consideration. Exceptions were saved and the question is presented by appropriate assignment.
We think the ruling of the trial court was in accordance with the principle of the Nebraska interpretation of the statute. Sorensen v. Sorensen, 56 Neb. 735, 77 N. W. 68; Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N. W. 949; which interpretation is controlling; USCA, title 28, § 631; In Thompson (D. C.) 205 F. 556; Remington on Bankruptcy, vol. 2, § § 560 and 2225. No case is cited to us from Nebraska deciding the exact question whether a bankrupt is competent to testify in a suit by his trustee against the representative of a deceased person concerning relevant transactions and conversations between the bankrupt and the deceased. But in the case of Housel v. Cremer, 13 Neb. 298, 14 N. W. 398, 399, the Supreme Court of Nebraska had for consideration an action in replevin brought against an assignee for the benefit of creditors. The lady who had made the assignment of her property for the benefit of her creditors had died and the plaintiff in the replevin suit undertook to testify to conversations and transactions had with her in her lifetime. The Supreme Court held he was incompetent to testify under the statute, saying:
"The th~'st of these (assignments of error) is that Housel, who offered himself as a witness in his own behalf, was not permitted to testify, the court holding him to cc disqualified by section 329 of the Code of Civil Procedure, which provides that `No person having a direct legal interest in the result of any civil cause or proceeding, shall be a competent witness therein when the adverse party is an executor, administrator, or legal representative of a deceased person/ etc. This ruling was correct. It is trae that Cremer was neither an executor nor administrator, but he was the assignee of Agnes M. McKelligon, and, within the contemplation of the statute, her ‘legal representative.’ He had, by the deed of assignment, been intrusted with the property in controversy for the purpose of selling it and paying off her debts. This done, if there should happen to be a surplus it would belong to her estate. * * * ”
Although the facts are not completely analogous, we think the principle announced is controlling upon us here. As declared by this court in Burton Coal Co. v. Franklin Coal Co., 67 F.(2d) 796, 801, “in the normal administration of a bankrupt estate, any surplus remaining in the custody of the trustee should go to the bankrupt.” We see no reason to doubt that the right of the bankrupt to all of his estate that may remain after bankruptcy administration is a right of a legal nature, and necessarily results in his having a direct legal interest in the bankrupt estate within the language of the Nebraska statute. Wheeling Structural Steel Co. v. Moss (C. C. A.) 62F.(2d) 37; In re Silk (C. C. A.) 55 F.(2d) 917; Berl v. Crutcher (C. C. A.) 60 F.(2d) 410, 441; Johnson v. Norris (C. C. A.) 190 F. 459, L. R. A. 1915B, 884. The bankrupt has also the right to make composition with his creditors (section 12 Bankruptcy Act, USCA, title 11, § 30) and upon confirmation of the composition, the bankruY>tcy proceeding must be dismissed (section 12e of: the Act (11 USCA § 30(e), leaving the bankrupt’s title to his estate unimpaired by the bankruptcy proceeding. This right also is in the nature of a legal interest in the estate.
The trial court cited in support of its conclusion cases in Nebraska holding that parties who are disqualified from testifying because of interest, cannot render themselves competent by transferring such interest after the death of the other party. Magemau & Company v. Bell, 13 Neb. 247, 13 N. W. 277; Riddell v. Riddell, 70 Neb. 472, 97 N. W. 609. BankruYitcy does operate to transfer the title and rights of the bankrupt to his trustee for the purposes of administration and these decisions lend support even though, as in this case, the bankruptcy was involuntary.
The trial court also called attention to the fact that in this ease the wife and daughters of the bankrupt had claims duly allowed aggregating a large percentage of all the allowed claims against the estate. It is held in Nebraska that the interest which a husband has in a cause of action belonging to the wife to recover real estate is a “direct legal interest” within the meaning of the statute, Holladay v. Rich, 93 Neb. 491, 140 N. W. 794; McEntarffer v. Payne, 107 Neb. 169, 185 N. W. 329; Brocker v. Day, 124 Neb. 316, 240 N. W. 490, and the existence of the claims of the wife and daughters illustrates the propriety of excluding the bankrupt’s testimony to accord with the spirit of the Nebraska statute.
The record indicates that the transaction in which James Cox loaned the bankrupt $20,000 and the bankrupt gave his brother the mortgage in controversy as security, was entirely between the two brothers, with apparently no witnesses. The mortgage was withheld from record until after the death of James C'ox and until occurrences developed strong likelihood that the Polk bank would fail. But we find in the record no circumstances indicative of fraudulent conduct or intent on the part of James Cox or his administrator towards the ci'editors represented by the trustee sufficient to require reversal of the decree of the trial court adjudging this mortgage valid as to the trustee in bankruptcy of Joshua Cox.
The decrees in both cases are, therefore, affirmed.
Section 36-101, Comp. St. of Nebraska, 1029:
“Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents and profits thereof, made with the intent to hinder, delay or defraud creditors or persons, of their lawful rights, damages, forfeit ores, debts or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent as against the persons so hindered, delayed or defrauded shall be void.”'
Section 76-218 Compiled Sta tutes of Nebraska, 1929:
“All deeds, mortgages and other instruments of writing which are required to be recorded shall take effect and be in force from and after the time of delivering tho same to the register of deeds for record, and not before, as to all creditors and subsequent purchasers in good faith without notice; and all such deeds, mortgages and other instruments shall be adjudged void as to all such creditors and subsequent purchasers without notice whose deeds, mortgages or other instruments shall be first recorded: Provided, such deeds, mortgages and instruments shall be valid between the parties.”
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ORANGE AND ROCKLAND UTILITIES, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Consolidated Edison Company of New York, Inc., Conoco, Inc., Tennessee Small General Service Customer Group, Alabama-Tennessee Natural Gas Co., Public Service Commission of the State of New York, Tejas Power Corporation, Berkshire Gas Company, et al., Peoples Gas Light & Coke Co., Long Island Lighting Company, Public Service Electric & Gas Company, Northern Illinois Gas Company, CNG Transmission Corporation, American Iron and Steel Institute, Intervenors.
No. 89-1129.
United States Court of Appeals, District of Columbia Circuit.
Argued March 30, 1990.
Decided June 12, 1990.
Robert A. Nelson for petitioner. Harry H. Voigt, M. Reamy Ancarrow, Diane B. Schratwieser, Washington, D.C., and Edward B. Myers were on the brief for petitioner.
Samuel Soopper, Atty., F.E.R.C., with whom Joseph S. Davies, Deputy Sol. F.E. R.C., was on the brief, for respondent. Dwight C. Alpern, Atty., F.E.R.C., also entered an appearance, for respondent.
Robert H. Benna, with whom David D. Withnell, Terence J. Collins, Washington, D.C., and Margaret B. Bollinger were on the brief, for Tennessee Gas Pipeline Co. Stephen E. Williams, Kevin J. Lipson, Charles C. Thebaud, Jr. and Mark G. Mag-nuson, Washington, D.C., were on the brief, for intervenors Tennessee Gas Pipeline Co. and CNG Transmission Corp. John E. Holtzinger, Jr., Washington, D.C., also entered an appearance for intervenor CNG Transmission Corp.
Harvey L. Reiter, Washington, D.C., and Barbara M. Gunther, Brooklyn, N.Y., were on the brief for intervenor, Consolidated Edison Co. of New York, Inc. William I. Harkaway, Washington, D.C., also entered an appearance for intervenor Consolidated Edison Co. of New York, Inc.
Bruce A. Connell, Houston, Tex., entered an appearance, for intervenor Conoco, Inc.
Michael J. Manning and James F. Moriarty, Washington, D.C., entered appearances, for intervenor Tennessee Small Gen. Service Customer Group.
Stanley M. Morley and Paul W. Diehl, Washington, D.C., entered appearances, for intervenor Alabama-Tennessee Natural Gas Co.
Richard A. Solomon and David D’Ales-sandro, Washington, D.C., entered appearances, for intervenor Public Service Com’n of the State of N.Y.
John W. Glendening, Jr., Barbara K. Heffernan and Bruce B. Glendening, Washington, D.C., entered appearances, for in-tervenor Berkshire Gas Co., et al.
Karen Lee and Thomas M. Patrick entered appearances, for intervenor Peoples Gas Light and Coke Co.
James F. Bowe, Jr. entered an appearance, for intervenor Long Island Lighting Co.
James R. Lacey entered an appearance, for intervenor Public Service Elec. & Gas Co.
David I. Bloom, Washington, D.C., entered an appearance, for intervenor Northern Illinois Gas Co.
Edward J. Grenier, Jr. and James M. Bushee, Washington, D.C., entered appearances, for intervenor American Iron and Steel Institute.
Richard E. Powers, Jr. and John M. Hopper, Jr., Washington, D.C., entered appearances, for intervenor Tejas Power Corp.
Before RUTH BADER GINSBURG, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
STEPHEN F. WILLIAMS, Circuit Judge:
Orange and Rockland Utilities, a customer of Tennessee Gas Pipeline Company, complains of two aspects of the Federal Energy Regulatory Commission’s treatment of Tennessee’s 1982 rate filing. See Order Affirming and Reversing Initial Decision, Tennessee Gas Pipeline Co. (“Order”), 45 FERC ¶ 61,031, pet. for reh’g denied in pertinent part (“Order on Rehearing”), 45 FERC ¶ 61,470 (1988). The first is the Commission’s insistence on a so-called “100% load factor rate” (effectively a rate based on fully allocated or average costs) for interruptible sales; the second, its approval of a higher commodity charge for a special class of gas transmission. We uphold the Commission as to the former and remand as to the latter.
Interruptible Sales Rate
Tennessee’s filing proposed to reduce the rate it charged for interruptible gas sales. The proposed rate would have equalled the commodity component of its rates for ordinary firm customers — its contract demand or “CD” customers. Under the “modified fixed variable” rate design approved for Tennessee, this charge would include all its gas costs, the variable costs of transportation and storage, and part of the fixed costs for the latter — return on equity and related income taxes. Thus interruptible purchasers would not have borne a share of that part of Tennessee’s fixed costs allocated to its demand charge.
The administrative law judge concluded that under the proposed reduced rate firm shippers would subsidize the interruptibles, and that Tennessee had shown no competitive need for the proposed rate (as against competition from alternative energy sources). Instead the AU reaffirmed the existing, previously approved 100% load factor rate, which matches what a firm customer would pay per unit of gas (in both commodity and demand charges) if it took 100% of its contract demand. See Initial Decision on Reserved Issue, Tennessee Gas Pipeline Co. (“ALJ Opinion”), 31 FERC ¶ 63,001 at 65,004-07 (1985). The Commission affirmed. Order, 45 FERC at 61,102-04.
For pipeline filings under § 4 of the Natural Gas Act, 15 U.S.C. § 717c, the burden of proof is on the pipeline when it proposes a rate increase. See Sea Robin Pipeline Co. v. FERC, 795 F.2d 182, 183 (D.C.Cir.1986); ANR Pipeline Co. v. FERC, 771 F.2d 507, 513 (D.C.Cir.1985). The Commission kept it there, even though the change proposed was a reduction, on the ground that it carried a possibility of shifting costs to firm customers. See 45 FERC at 61,103. The prospect of cost-shifting would seem to turn on projected volumes. If Tennessee’s proposal projected a high enough volume under the lower rate, interruptible service thereunder could make a greater contribution to fixed costs than under the 100% load factor rate, shifting costs away from the firm customers. It is not clear exactly how Tennessee handled the matter, but since no party has contested the allocation of the burden to Tennessee, we assume its validity-
In its petition for rehearing, Orange and Rockland rested primarily on what it viewed as the Commission’s failure to recognize the distinctions between the present case and prior Commission decisions applying a 100% load factor rate. That merely puts on the Commission a burden of explaining why it was extending the earlier decisions; it does not in itself make a case for the proposed alternative rate. Here we find that the Commission gave at least plausible explanations for extension of the prior cases. As neither Tennessee nor the customers seeking a lower interruptible rate undertook to show why the Commission’s approach was fundamentally wrong, we affirm.
Thus, Orange and Rockland points out that whereas in the- previous instances in which the Commission imposed the 100% load factor rate interruptible sales weren’t truly interruptible, see, e.g., Public Service Comm’n of the State of New York v. FERC, 813 F.2d 448, 453 (D.C.Cir.1987), here they are “interruptible in the extreme.” To this the Commission had two kinds of answers. First, it invoked its prior decision in Texas Eastern Transmission Corp., 37 FERC ¶ 61,260 at 61,697-61,705 (1986), reh’g denied, 41 FERC ¶ 61,015 at 61,028-30 (1987), aff'd sub nom. Texaco, Inc. v. FERC, 886 F.2d 749 (5th Cir.1989), which acknowledged that quality differences called for rate differences but noted that a 100% load factor rate is different from a standard CD rate: a firm customer would pay as little per unit only if it bought its full contract quantity. See Order, 45 FERC at 61,104. In essence it appeared to be saying that as the 100% load factor rate was a genuine advantage, it was unwilling to create further refinements for degrees of interruptibility.
More important, the Commission asserted that because interruptible service used the facilities for which the fixed costs were incurred, it properly bears some of those fixed costs. See id.; see also Order on Rehearing, 45 FERC at 62,471. In fact this does not seem necessarily so. In its regulation of interstate sales of electricity, the Commission takes the view that “those creating the critical need for power [i.e., the peak period users] are assigned the cost responsibility for all capacity-related costs.” Union Electric Co., 40 FERC ¶ 61,046 at 61,141 (emphasis in original), modified on reh’g, 41 FERC ¶ 61,343 (1987), rev’d on other grounds sub nom. Union Electric Co. v. FERC, 890 F.2d 1193 (D.C.Cir.1989). This view embodies the principle that regulators should allocate the costs of facilities to those whose demand causes them to be incurred, in order to provide users with correct incentives in their decisions about whether to invest in alternatives and about what quantities to take and when. See Union Electric Co., 890 F.2d at 1198-1201. If peak-period use determines the size of gas transmission facilities, as one would expect by analogy to electricity generation, then it is not clear why interruptible service — at least if it is genuinely interruptible — should bear any portion of the fixed costs. On the other hand, the Commission has for various reasons qualified its general policy of loading the fixed costs of electricity generation onto peak-period users, see discussion at 890 F.2d at 1198-1200, and similar ones may apply, perhaps even more forcefully, for gas pipelines.
In a policy statement issued after the decision under review here, however, the Commission appeared to adopt a view extremely sympathetic to peak-period pricing. Noting that regulations for unbundled transportation rates called for interruptible and off-peak rates that would “maximize throughput,” it observed that this principle should extend to the transportation portion of bundled sales rates as well. Policy Statement Providing Guidance with Respect to the Designing of Rates, 47 FERC ¶ 61,295 at 62,052 (1989). Although “maximize throughput” is surely hyperbole (a zero rate would do so, but would not cover variable costs), the policy statement appears to reflect an intention to apply to gas pipeline service something at least approximating the cost causation principles that it uses for electricity. But as neither Tennessee nor Orange and Rockland shouldered the burden of establishing the wisdom or necessity of those principles, we accept the Commission’s adherence to its former view.
Before the Commission, Tennessee and Orange and Rockland also asserted that the higher price seriously impaired the marketability of the interruptible gas. Although there was some vagueness in the ALJ’s response, which may mirror faults in Tennessee’s and petitioner’s own arguments, he did find that the 100% load factor rate was “competitive with the cost of alternative fuels in Tennessee’s market area.” 31 FERC at 65,006. Of course this is far from a finding that a lower rate would not increase sales — that would imply no price elasticity, which seems highly improbable. But neither Tennessee nor petitioner appears to have quantified the increase that would follow from the proposed reduction. Compare Ozark Gas Transmission System v. FERC, 897 F.2d 548 (D.C.Cir.1990); Natural Gas Pipeline Co., 27 FERC ¶ 61,235 (1984) (allowance of off-system sales at commodity rate based on demonstration of net benefit to system customers). Under the regulatory viewpoint then prevailing for gas sales rates, and not challenged by the parties at any fundamental level, the Commission weighed an uncertain gain in gas sales against a concern about wrongly shifting fixed costs to other customers. See id. On such a view, its decision to hold the line at the 100% load factor rate was not arbitrary.
Although the AU made no express finding on the effect of the lower rate on Tennessee’s competitive position with respect to other gas suppliers, again the prevailing policy left the Commission free to decide as it did, at least where the proponent of a change failed to make a strong record on the subject. For one thing, gas-against-gas competition raises special issues not present for competition against alternative fuels; increased gas usage may not be large enough to justify the reduced collective recovery of fixed costs by gas pipelines. Cf. Associated Gas Distributors v. FERC, 824 F.2d 981, 1019 (1987). And the Commission itself went on to observe that if Tennessee wished to develop a program for discounted interruptible sales, it could file for a certificate of convenience and necessity under § 7 of the Natural Gas Act, under which it could charge different rates for different customers. See Order on Rehearing, 45 FERC at 62,471. Although such a proposal would not have the procedural advantage of taking effect automatically on filing (subject to the Commission’s § 4 power to suspend for five months), the suggestion manifests a Commission recognition of the appropriateness of sales below the 100% load factor rate for purposes of meeting competition. It also provided Tennessee with a device for improving marketability with less impact on interruptible service’s contribution to fixed costs (because of the selectivity of the discounts), thereby assuaging the Commission’s then strong anxiety on the subject.
Rate for Transmission of Storage Gas
Tennessee’s storage service customers buy CD gas from Tennessee during the summer, store it with Tennessee at a point along the way, and then withdraw it during the winter. The gas travels the same distance as unstored gas. The arrangement benefits customers by enabling them to spread their purchases out over the year; they may as a result nominate a level of contract demand closer to the level of gas actually taken, thereby reducing their demand charges (effectively the charges made for claims on pipeline capacity). The pipeline presumably also benefits by being enabled to increase the total usage of its facilities.
At issue here is the way in which storage customers are charged for the transmission involved in the downstream leg of the journey, from storage to point of ultimate delivery. While the arithmetic is unclear to us, it appears undisputed that for this transmission, the storage customers pay a higher unit rate for transportation than do CD customers for firm service supplied in the peak period.
The record is particularly garbled as to the first possible element of the higher rate. The pipeline proposed to allocate the transmission costs of the downstream leg to the storage schedule rather than to the CD sales schedule, and the Commission agreed. This separation may appear a formality, with no real effect on the allocation of costs between storage and other customers. But the Commission itself appears to have believed that more was at stake, for in adopting Tennessee’s approach it rested on a substantive finding “that Tennessee’s pipeline and compressor facilities located downstream from storage were constructed in part to provide capacity for these storage services and that these are additional costs associated with moving gas from storage to the customer that are not associated with service to CD customers who do not use storage service.” Order, 45 FERC at 61,112.
It may be that the Commission approach leads to a kind of double charge for storage customers. Tennessee apparently eliminated any double counting as to its total revenues by subtracting from the CD schedule the costs added to storage service, see ALJ Opinion, 31 FERC at 65,017, but that would not necessarily solve the issue. If the storage customers’ initial CD charge covers transmission costs all the way to the point of ultimate delivery to them, as parts of the record suggest, see 45 FERC at 61,111 (noting Orange and Rockland argument that “deliveries out of storage actually represent the completion of CD sales”); 31 FERC at 65,018 (“the [storage] customer is entitled to final delivery, whether out of storage or not, by virtue of its purchase under the CD rate”), the storage customers would be paying twice for the downstream leg. Not quite twice, of course, because as CD customers they would (along with the other CD customers) receive some benefit from the CD rate reduction.
If this is in fact the case, the Commission has not justified it. The fact that the downstream transmission facilities were constructed “in part” for the storage customers does not explain why they should pay more than other customers, for whom the facilities were also constructed “in part.” It is no reason to impose a burden on one class to point to a characteristic shared by the other.
Tennessee also secured Commission approval of a specific method of allocating costs — on the basis of average peak-day deliveries rather than on the basis of average annual deliveries, as it does for transmission costs under the CD sales schedule. Again the arithmetic is obscure, but again it is clear that this causes or contributes to the higher unit rate that storage customers pay for downstream transmission. Here the Commission justification was simply that “storage withdrawal service is clearly rendered on a peak winter basis and warrants an allocation on the basis of peak (not annual) deliveries.” Order, 45 FERC at 61,112.
The theory seems to be customers whose usage is heavily or exclusively loaded in the peak periods should pay a higher average rate than ones whose usage is more evenly spread out. But there are two problems here. First, that result can readily be attained by adopting a differential between peak and off-peak charges, an approach that also has the effect of imposing incentives on all peak-period users that reflect the role of peak usage in cost incurrence. Second, even if for some (as yet undisclosed) reason the Commission is reluctant to use a peak-period differential, in this particular case it has imposed special burdens on the storage customers for a reason — low load factor (i.e., an unevenly distributed load) — that evidently applies to many of the regular CD customers. See ALJ Opinion, 31 FERC at 65,017-18.
We realize that it is hard for the Commission to write simply enough to make its views comprehensible to inexpert judges. But whether because we are inexpert or obtuse, or because the Commission has not expressed itself clearly enough, we are unable to detect reasoned decision-making on this issue. Accordingly, although we affirm as to the interruptible rate, we must remand the case to the Commission as to the treatment of storage costs.
So ordered.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_respond1_7_2
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Don Camby LOWTHER, PlaintiffAppellee, v. UNITED STATES of America et al., Defendants-Appellants.
No. 72-1807.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 24, 1973.
Decided June 20, 1973.
James H. Harrod, Oklahoma, Okl., for plaintiff-appellee.
O. B. Johnston III, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for defendants-appellants.
Before PICKETT, HILL and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The government here appeals a judgment of the District Court for the Western District of Oklahoma in favor of plaintiff-appellee awarding him the sum of $892.50 representing the reasonable market value of certain weapons which the government had seized and forfeited. These consisted of two-9 mm German Lugers, a Winchester 30 caliber rifle, one-9 mm Luger-Drum Magazine and two boxes of miscellaneous rifle and sub-machine gun parts.
The events leading up to the seizure are important to an understanding of the problem presented to this court. On March 8, 1970, officers of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service in the process of executing a search warrant seized the weapons in question from the residence of plaintiff-appellee. He was subsequently arrested and charged in a criminal case for possession of firearms contrary to 26 U.S.C. §§ 5861(d) and 5871. The seizure by the government was pursuant to 26 U.S.C. § 5872 as having been used illegally.
On May 20, 1970, the plaintiff-appellee filed a petition to the Director of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service claiming the five items of property which had been seized and asking for remission or mitigation of forfeiture of the said items.
On October 8, 1970, appellee was tried in the criminal case and was acquitted on all nine counts. Notwithstanding this, on January 29, 1971, notice was given that the application for remission or mitigation had been denied. On January 7, 1971, apparently without the knowledge of the appellee, the weapons and parts had been destroyed by Alcohol, Tobacco and Firearms Division agents.
Subsequently, on February 23, 1971, plaintiff-appellee filed the present action in the United States District Court for the Western District of Oklahoma. This took the form of a request for review of the Director’s decision. However, at the trial it appeared that the five items had been destroyed and the trial court treated the case as an action for damages, disregarding the plaintiff’s prayer for return of the items. As noted, a money judgment was entered. The basis for the court’s decision was that plaintiff had been acquitted of illegal possession of firearms in a criminal prosecution and that this was in effect an adjudication of the legality of the property and the plaintiff’s right to possess the same. The court reasoned that since the plaintiff was entitled to the possession and was in lawful possession the seizure was necessarily invalid. A seizure to be valid must be pursued, according to the court, by showing that the possession of the items be contrary to Title 26 U.S.C., Chapter 53. Therefore, the court continued, the imposition of the forfeiture contrary to law constituted an unconstitutional deprivation of the plaintiff’s property.
The government asserts that the trial court lacked jurisdiction to grant relief because first, the administrative ruling on the petition for remission or mitigation was final and conclusive and not reviewable either directly or indirectly; secondly, it is contended that a court hearing was available to the appellee only by posting a cost bond within the time requirement of 26 U.S.C. § 7325. Failure to post the bond resulted in a waiver. The question is then whether by applying for remission of the penalty pursuant to 26 U.S.C. § 7327 rather than filing a bond pursuant to 26 U.S.C. § 7325 gave rise to a consent or tacit approval of the action of the Secretary or' his delegate in denying the application.
An important‘factor is that the property here is neither narcotics nor other contraband. On the contrary, it was determined by the trial court to have been innocently used and to have not been illegal per se. Furthermore, the appellee was adjudged by the jury in the criminal case to be not guilty. Thus, the government must justify a taking and forfeiture which was unrelated to any violation of the law and which concerned property which was validly in possession of the appellee. It boils down then to the government’s having destroyed appellee’s property without having any authority in law to do it. Consequently, the action of the Director of the Alcohol, Tobacco and Firearms Division constituted a disregard of the evidence and law in the case and was contrary to the due process clause of the Fifth Amendment.
Prior to the decision of the Supreme Court in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), there was confusion as to the authority of officers of the government to seize and forfeit property. There were early cases which have held that such authority was absolute. Some of the older cases, on the other hand, held that an acquittal in a criminal case was a bar to the forfeiture and still other cases held that the criminal case and the forfeiture proceedings were interrelated and that the forfeiture could not be validly carried out unless there had been a conviction in the criminal case. Coin & Currency brought about some degree of order. It held first, that the forfeiture is criminal in character; secondly, it recognized the necessity for the owner of the property to have been using it in a criminal activity. It said that the forfeiture penalty is to be imposed only upon those who are significantly involved in a criminal enterprise. See 401 U.S. at 722, 91 S. Ct. 1041. It also questioned whether the forfeiture is an in rem proceeding since it is interrelated with the wrongdoing of the owner.
Also, since Coin & Currency, doubts as to the unlimited discretion of the Secretary have been removed. He may not arbitrarily deny remission in disregard of the evidence and the law and at the same time escape judicial inquiry and scrutiny.
As shown above, the Supreme Court has said that if the situation is sufficiently extreme, there will be court intervention. The form of court intervention is not defined, but this is not entirely new. Even the early cases such as Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), have said that acquittal in the criminal case allows the defendant to assert this judgment as a defense in forfeiture proceedings.
This court has, in relatively recent times, recognized the vitality of Coffey. In the case of United States v. One 1956 Ford Fairlane Tudor Sedan, 272 F.2d 704 (10th Cir. 1959), the defendant was prosecuted for the transportation of sugar intended for use in the unlawful manufacture of distilled spirits. The result of this was a verdict of not guilty. Notwithstanding the verdict, forfeiture proceedings were undertaken against the vehicle and the sugar. This court, applying the Coffey case, held that the acquittal in the criminal case barred forfeiture action.
In the ease at bar the trial court did not specify a jurisdictional avenue. It simply ruled that the plaintiff was entitled to recover based on the taking of his property without due process of law. There is, however, a statutory remedy which is peculiarly adaptable to the present case and that is the Tucker Act which authorizes the district court to entertain an action against the United States founded upon the Constitution.
We do not regard as significant the fact that the trial court did not cite the Tucker Act since it acted in accordance with it when it ruled that it had jurisdiction to remedy a taking of property contrary to the Fifth Amendment. While the Tucker Act would not be the appropriate remedy in every case, the peculiar facts here presented giving rise as they do to a palpable taking of property without due process of law render it peculiarly appropriate.
In summary, then, we hold that the officers here acted contrary to law in seizing the property in question; that the Director acted contrary to law in disregarding the evidence and in acting without any tenable legal basis, since the property was innocent and was not being used illegally. Finally, we agree with the trial court that the appellee’s constitutional rights were violated; we hold that the taking without due process gave rise to a remedy under the Tucker Act.
It follows that the judgment should be and the same is hereby affirmed.
. The trial court’s conclusions are set forth as follows:
The acquittal of the Plaintiff on criminal charges involving possession of firearms in violation of 26 U.S.C., §§ 5861(d), 5871, is in effect an adjudication of the legality of the property and the Plaintiff’s right to possess the same. The Plaintiff is the actual and rightful owner of the items of personal property set forth in his Petition for Remission or Mitigation of Forfeiture and has complied with all the laws, both state and federal, pertaining thereto. The Defendant’s contention that the property was rightfully forfeited according to the provisions and procedures prescribed in 26 U.S.C. § 7325, is in error since it is paramount to the invoking of that statute that the items of property involved be in violation of Chapter 53, Title 26, United States Code. This Court has determined that the items of personal property as described in the Plaintiff’s Petition for Remission or Mitigation of Forfeiture were not held in violation of law, and as such the Order of the Internal Revenue Service to have the property destroyed was in violation of the Constitution, the laws of the United States, and as such deprives the Plaintiff of his property without due process of law. The imposition of forfeiture on the Plaintiff is penal in nature and causes an unconstitutional deprivation of personal property without just compensation.
Consequently, the Plaintiff is entitled to a judgment in his favor for the fair market value of the items of personal property as described in his Petition for Remission or Mitigation of Forfeiture that were seized and ordered destroyed by the Internal Revenue Service.
. Early cases of this court, e. g. United States v. Kemp, 186 F.2d 808 (10th Cir. 1951), United States v. One 1941 Plymouth Tudor Sedan, 153 F.2d 19 (10th Cir. 1946), which state that the Secretary has uncontrollable discretion are wholly inconsistent with Coin & Currency.
. Cf. Notes 3 A.L.R.2d 738; 27 A.L.R.2d 738.
. The Court recognized the broad scope of the forfeiture proceedings, but that it is nevertheless subject to limitations of the Constitution. The Court stated:
An express statutory provision permits the innocent owner to prove to the Secretary of the Treasury that the “forfeiture was incurred without willful negligence or without any intention on the part of the petitioner . . . to violate the law .... 19 U.S.C. § 1618. Upon this showing, the Secretary is authorized to return the seized property “upon such terms and conditions as he deems reasonable and just.” It is not to be presumed that the Secretary will not conscientiously fulfill this trust, and the coiirts have intervened when the innocent petitioner’s protests have gone unheeded. When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise.
401 U.S. at 721-722, 91 S.Ct. at 1044 (emphasis added) ■ (citations & footnote omitted).
. The opinion of Judge Breitenstein declared :
On the ground that the acquittal in the criminal case barred recovery in this case, the trial court directed a verdict in favor of the defendant.
We are unable to distinguish this case from Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, wherein it was held that the acquittal of Coffey on various liquor tax charges barred forfeiture proceedings.
iji SH # #
Any departure from Coffey and its “uncritical language” must come from the Supreme Court. We are bound by the rule therein announced.
272 F.2d 70-4-705.
. It provides that the district court has original jurisdiction, concurrent with the Court of Claims, of
[a]ny . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of any executive department, or upon any express or implied contract with the United States, or for liquidated damages in cases not sounding in tort.
28 U.S.C. § 1346(a)(2).
. This remedy has been applied to forfeiture proceedings by federal courts on previous occasions. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993 (S.D. N.Y.1969). In JaeTcel the plaintiff’s vehicle was seized as a result of conduct of her daughter. Subsequently, it was sold and the proceeds were turned over to the bank to satisfy the mortgage. An action was brought by the plaintiff alleging that the forfeiture was void in that it deprived her of her property without due process of law. The United States District Court for the Southern District of New York (Judge Bonsai) held that the Tucker Act was a proper remedy.
In United States v. One 1961 Red Chevrolet Impala Sedan, the Fifth Circuit rejected the government’s contention that the plaintiff had not followed the proper remedy and ruled that the owner of the property invalidly forfeited had a remedy under the Tucker Act. The court did not, however, give effect to the remedy, but due to the fact that the owner had sought to get relief under Rule 60(b) in the forfeiture proceedings, affirmed the action without prejudice to the owner to institute a new suit under the Tucker Act.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_jurisdiction
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
William E. BROCK, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Joann SHIRK, individually and doing business as Oregon Meat Cutting School; Frank B. Shirk, individually and doing business as Oregon Meat Cutting School, Defendants-Appellees.
No. 86-4121.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 11, 1987.
Decided Dec. 8, 1987.
Claire Brady White, U.S. Dept, of Labor, Washington, D.C., for plaintiff-appellant.
Edward N. Fadeley, Fadeley & Fadeley, Eugene, Or., for defendants-appellees.
Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.
PER CURIAM:
This is a case about willfulness, good faith and the Fair Labor Standards Act (“FLSA”). The Secretary of Labor appeals from the relief, inadequate in his view, that was granted in litigation against violators of FLSA.
The trial judge found that employers, then before the court as repeat offenders under FLSA, “knew or had reason to know that [their] employees were working overtime hours without compensation.” He also ruled that the employers’ acts and omissions were not “willful,” and were “in good faith.” He applied a two-year statute of limitation, denied liquidated damages, and refused to issue a prospective injunction. Applying controlling authority, we must reverse and remand.
I. FACTS
The dispositive facts are not contested. Appellees Frank and Joann Shirk operate the Oregon Meat Cutting School and two associated retail outlets. In an Oregon state court action in 1980, they were found guilty of violating the FLSA by failing to pay an employee time and one-half for overtime hours. After judgment was entered in that case, the Shirks installed a time clock in their Springfield work place. They told their employees that they were on “salary,” but required them to punch the time clock for pay purposes. The Shirks posted, and had their employees sign, written rules emphasizing that no overtime would be authorized. Employees actually worked more than their time cards showed.
Employees complained to the Department of Labor. Following an investigation of the Shirks’ enterprise, the Secretary of Labor filed suit against the Shirks in federal district court, alleging failure to pay overtime, failure to keep and maintain proper work records in violation, and use of child labor, in violation of 29 U.S.C. §§ 207(a), 211(c) and 212(c).
The Shirks alleged as affirmative defenses: (1) they acted at all times in good faith with reasonable grounds for believing they were not violating the FLSA; (2) they were ignorant of any child labor at their enterprise; (3) they were ignorant of any overtime violations, having relied on the employees’ incorrectly punched time cards; and (4) the employees’ actions (including submission of time cards they knew to be incorrect and acceptance of the Shirks’ no overtime policy) estopped this action under the FLSA.
The district court absolved the Shirks of the child labor charges. It found, however, that they knew or had reason to know that their employees were covered by the FLSA and were in fact working more than 40 hours per week. It concluded that the Shirks violated the overtime and reporting provisions of the FLSA, but denied the Secretary of Labor’s request for three years back pay, for liquidated damages, and for injunctive relief. The Secretary of Labor appealed.
ANALYSIS
II. “WILLFUL” VIOLATION OF SECTION 255
The Secretary challenges first the trial court’s determination that the employees’ claims were limited by a two-year statute of limitation. The Portal-to-Portal Act, 29 U.S.C. §§ 251 et seq., provides that:
Any action ... to enforce any cause of action for ... unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act ... may be commenced within two years after the cause of action accrued, ... except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. ...
29 U.S.C. § 255(a) (“section 255”). At issue here is the trial court’s finding that the Shirks’ acts or omissions were not “willful” for purposes of that provision.
The meaning of the term “willful” in section 255 is well settled in this Circuit. In Marshall v. Union Pacific Motor Freight Co., 650 F.2d 1085, 1092 (9th Cir.1981), this court explicitly adopted:
the following rule for determining willfulness under section 255: A violation is willful when the employer was, or should have been, cognizant of an appreciable possibility that the employees involved were covered by the statutory provisions.
See also EEOC v. First Citizens Bank of Billings, 758 F.2d 397 (9th Cir.) (applying the Union Pacific standard), cert. denied, 474 U.S. 902, 106 S.Ct. 228, 88 L.Ed.2d 228 (1985). We apply that standard here.
We review de novo interpretation of the statutory authorization of damages. First Citizens, supra, at 401. See also United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (application of law to undisputed facts reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We try the matter anew, as if it had not been heard before and as if no decision had been previously rendered. Exner v. FBI, 612 F.2d 1202, 1209 (9th Cir.1980).
The trial court noted the applicability of First Citizens, but ruled that despite the Shirks’ knowledge that their employees were covered by the statutory provisions, and their knowledge or reason to know that their employees were working overtime without compensation, the Shirks did not necessarily willfully violate the FLSA. We conclude otherwise. On these facts, for purposes of Section 255, the Shirks necessarily, as a matter of law, “willfully” violated the FLSA. The three-year statute of limitation applies.
III. LIQUIDATED DAMAGES OR PREJUDGMENT INTEREST
The Secretary appeals also the district court’s denial of liquidated damages. Under 29 U.S.C. § 216(b), employers who violate the overtime compensation provisions of the FLSA are liable to their employees both for unpaid overtime compensation and for liquidated damages in an amount equal to the back pay liability:
Any employer who violates the provisions of section 206 or section 207 of this Title shall be liable to the employee or employees affected in the amount of their unpaid ... wages ... and in an additional equal amount as liquidated damages.
Section 216(b) is mandatory: violators “shall be liable” for liquidated damages. First Citizens, 758 F.2d at 403; 29 U.S.C. § 216(b).
That section is modified, however, by section 260, providing that the court may, in its sound discretion, refuse to award liquidated damages if the employer demonstrates that it acted reasonably and in good faith:
[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act ... the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this Title.
Under section 260, the district court may deny liquidated damages
if, and only if, the employer shows that he acted in good faith and that he had reasonable grounds for believing that he was not violating the Act.... [B]efore the district court’s discretion may be invoked, the employer has the plain and substantial burden of persuading the court by proof that his failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon him more than a compensatory verdict.
Marshall v. Brunner, 668 F.2d 748, 753 (3rd Cir.1982) (emphasis in original) (citations and footnote omitted).
The district court’s determination that the Shirks satisfied their burden of demonstrating that they acted in good faith and on reasonable grounds requires the application of legal principles to established facts. We thus review the district court’s determination de novo. McConney, 728 F.2d at 1202.
To meet their statutory burden, the Shirks were required to demonstrate both that “the act or omission giving rise to [the violation] was in good faith and that [they] had reasonable grounds for believing that [their] act or omission was not a violation of the [FLSA].” 29 U.S.C. § 260 (emphasis added). This test has both subjective and objective components.
To satisfy the subjective “good faith” component, the Shirks were obligated to prove that they had “an honest intention to ascertain what [the FLSA] requires and to act in accordance with it.” First Citizens, 758 F.2d at 403; see also 29 C.F.R. 790.15 (“ ‘Good faith' requires that the employer have honesty of intention and no knowledge of circumstances which ought to put him upon inquiry.”). It is evident from a review of the district court’s findings that the Shirks failed to demonstrate their good faith in this case.
The district court found that the Shirks were repeat offenders who knew both that their employees were covered by the FLSA and that they were working overtime without compensation. These findings belie the Shirks’ claim that they believed in good faith that their failure to pay overtime did not constitute a violation of the FLSA. Their awareness that their employees were working without compensation precludes a finding that they had no knowledge of circumstances which ought to have put them on inquiry. Their knowledge that their employees were covered by the FLSA demonstrates that they lacked an honest intention to find out what the FLSA requires and to act in accordance with its provisions. We are persuaded, therefore, that the district court failed to apply the correct legal standard in making its section 260 determination of “good faith.”
To satisfy the objective component of the statutory test, the Shirks were required to prove that “[their] failure to obey the statute was ... predicated upon such reasonable grounds that it would be unfair to impose upon [them] more than a compensatory verdict.” Brunner, 668 F.2d at 753. The district court did not indicate that it considered, much less applied, any such standard when making its section 260 determination.
The district court found that the Shirks knew their employees were working overtime but that they “honestly believed” they could avoid liability under the FLSA by telling their employees that overtime would not be “authorized.” The district court then based its denial of liquidated damages on this finding of “honest belief.” Even assuming that the Shirks subjectively believed, in good faith, that they were not required to compensate their employees for “unauthorized” overtime, they failed utterly to satisfy their burden of proving that this belief was reasonable. The facts in this case simply cannot support a finding that the Shirks had objectively reasonable grounds for believing no violation was taking place.
The record before us permits only one proper conclusion: that the Shirks, as a matter of law, failed to satisfy their burden of demonstrating that they reasonably and in good faith believed that they were not violating the FLSA. Consequently, the district court had no discretion to mitigate the Shirks’ statutory liability for liquidated damages. Id. We reverse the district court’s decision on this issue and remand with instructions to award liquidated damages in accordance with the requirements of section 216(b).
IV. PROSPECTIVE INJUNCTION
Finally, the Secretary appeals the district court’s denial of injunctive relief. We review that decision for abuse of discretion or for application of an erroneous legal principle. Brock v. Big Bear Market #3, 825 F.2d 1381, 1383 (9th Cir.1987).
The district court based its decision to deny injunctive relief in this case largely on its finding that the defendants honestly believed they were not violating the FLSA. The court explained:
[The Shirks’] violation of FLSA was not willful and, despite the violations, I find they were acting in good faith. I find no reason to believe they are not presently complying with the Act or that they will fail to comply with it in the future. Therefore, I do not find it necessary to issue a prospective injunction against them at this time.
Though the question of whether the trial court thereby abused its discretion is a close one, examination of our cases indicates that the district court failed to give adequate weight to relevant factors in reaching its decision.
We have emphasized that prospective injunctions under FLSA serve a remedial not a punitive purpose:
The injunction subjects the defendants to no penalty, to no hardship. It requires the defendants to do what the Act requires anyway — to comply with the law.... [T]he manifest difficulty of the Government’s inspecting, investigating, and litigating every complaint of a violation weighs heavily in favor of enforcement by injunction — after the court has found an unquestionable violation of the Act.
Marshall v. Chala Enterprises, Inc., 645 F.2d 799, 804 (9th Cir.1981) (Chala) (emphasis in original) (quoting Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir.1962)). We noted that “[i]n exercising its discretion, the district court must give substantial weight to the fact that the Secretary seeks to vindicate a public, not a private, right.” Id. Prospective injunctions place the cost of noncompliance on the employer and are essential to effectuate Congress’s policy of abolishing substandard labor conditions by preventing recurring violations. Id.; see also Big Bear, 825 F.2d at 1383. Thus, though the district court has discretion to deny injunctive relief in appropriate cases, this discretion is limited by consideration of the importance of prospective relief as a means of ensuring compliance with the provisions of the FLSA. Chala, 645 F.2d at 804.
In determining whether to award injunctive relief against an employer, the district judge should consider evidence of current compliance, any record of past violations, and the likelihood of future compliance. See Big Bear, 825 F.2d at 1383; Wirtz v. Atlas Manufacturing Co., 377 F.2d 112 (5th Cir.1967) (Wirtz). Current compliance alone is not a sufficient ground for denying injunctive relief. Big Bear, 825 F.2d at 1383; Chala, 645 F.2d at 804.
The most important factor the district court must weigh in deciding whether to grant such relief is the likelihood that the employer will comply with the Act in the future. Big Bear, 825 F.2d at 1383 (“a district court must weigh the finding of violations against factors that indicate a reasonable likelihood that the violations will not recur”); Wirtz, 377 F.2d at 116.
In determining likelihood of future compliance, the court should consider the employer’s previous conduct and the dependability of its promises for future compliance. Big Bear, 825 F.2d at 1383; Wirtz, 377 F.2d at 116. Our review of the record convinces us that the district court did not adequately consider these factors in reaching its decision.
First, the court failed to give adequate weight to the fact that the Shirks have been guilty of violating the FLSA on at least one prior occasion by failing to pay their employees overtime compensation. We stated in Big Bear that previous violations or bad faith are factors “weighing heavily in favor of granting a prospective injunction.” 825 F.2d at 1383. The district court observed that acts of past noncompliance are “relevant” to a determination of whether injunctive relief is appropriate. It did not, however, mention the Shirks’ past violation in reaching its decision.
Second, the court failed to consider adequately the dependability of the Shirks’ promise of future compliance. It stated that “the extent to which the defendant has made a promise of future compliance” is a “relevant factor” in determining whether to grant injunctive relief. This misstates the relevant test. Mere assurances of future compliance do not provide a sufficient basis for denying an injunction. Chala, 645 F.2d at 804. Instead, the inquiry must focus on the dependability of the promise made. Big Bear, 825 F.2d at 1383; Wirtz, 377 F.2d at 116.
The judge’s findings and other evidence in the record raise doubt as to the reliability of the Shirks’ promise. They were repeat offenders of the Act. The district court found that, in the case at bar, they had violated the recordkeeping and overtime provisions of the Act. It found that the Shirks had knowledge that their employees were working overtime without compensation, but that they believed they could avoid liability for overtime under the FLSA by instructing their employees that overtime would not be authorized. Mr. Shirk testified in his deposition that he continued the practice of having employees sign a form that stated that no overtime would be authorized. Yet, the district court specifically found it “hard to believe” that the Shirks “seriously preferred]” that their employees not work overtime given the amount and nature of the work they had to do.
It thus appears from the record that the Shirks may continue the same practices that led to their liability in this case: instructing their employees not to work overtime under circumstances in which it is likely that their employees will continue to work overtime rather than leave important tasks undone. We cannot find in the district court’s analysis adequate consideration of the factors weighing in favor of injunctive relief in this case. We therefore remand with instructions to reexamine this issue in light of our holdings in Big Bear and Chala.
V. CONCLUSION
We REVERSE and REMAND. The parties will bear their own costs on this appeal.
. The district court found it difficult to credit the Shirks’ assertion that they seriously intended that their employees stop working at the end of their shifts when important tasks (e.g., cleaning the store and packing and refrigerating perishable meat) remained to be done. Findings of fact and evidence in the record clearly indicate that despite the no overtime "rule," the Shirks expected their employees to complete the tasks assigned them even if that required that employees actually work more than forty hours per week.
. We recognize that other circuits have questioned that definition of willful, and that the Supreme Court will likely resolve the existing conflict among the circuits. See Brock v. Rich-land Shoe, 799 F.2d 80 (3d Cir.1986), cert. granted, — U.S. —, 108 S.Ct. 63, 98 L.Ed.2d 27 (1987). First Citizens is still the law of this circuit. It controls here.
. At oral argument, both counsel queried whether the employees were entitled to liquidated damages, prejudgment interest, or both. We have determined that liquidated damages are mandated by statute. Only one such "make whole” remedy is proper here. See Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir.1987); Hodgson v. Wheaton Glass Co., 446 F.2d 527, 534 (3d Cir.1971).
. According to the Pretrial Order contained in the Excerpt of Record, an Oregon court entered a judgment against the Shirks in 1980 for violating the overtime provisions of the Act.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
FARMERS ELEVATOR MUTUAL INSURANCE CO., a corporation, Appellant, v. CARL J. AUSTAD & SONS, INC., a Corporation; Tri-State Insurance Company, a Corporation; L. P. Gas Transport Company, a Corporation, and Martha D. Tatro, Individually and as Trustee for the North Dakota Workmen’s Compensation Bureau, Appellees.
No. 17773.
United States Court of Appeals Eighth Circuit.
March 18, 1965.
William R. Reichert, Dickinson, N. D., made argument for the appellant and filed brief with Frederick Saefke, Jr., Bismarck,. N. D.
Patrick A. Conmy, Bismarck, N. D., made argument for appellee, Tri-State Ins. Co. and filed brief.
E. F. Engebretson, Bismarck, N. D.t made argument for appellees Carl J. Aus-tad & Sons, Inc., and L. P. Gas Transport Co. and filed brief.
Before VOGEL, MATTHES, and RIDGE, Circuit Judges.
MATTHES, Circuit Judge.
This declaratory judgment action was filed on August 19, 1963, in the United States District Court for the District of North Dakota. Farmers Elevator Mutual Insurance Co. (Farmers), an Iowa corporation, was plaintiff and is the appellant. The defendants and appellees are: Carl J. Austad & Sons, Inc. (Aus-tad) ‘r Tri-State Insurance Company (Tri-State); L. P. Gas Transport Company (Transport) and Martha D. Tatro, individually and as Trustee for the North Dakota Workmen’s Compensation Bureau.
The purpose of this action is to obtain a judicial determination of the following questions: (a) whether or not Tri-State must defend Scranton Equity Exchange (Scranton).In the wrongful death action brought by Martha D. Tatro in the District Court of Bowman County, North Dakota; (b) whether Tri-State has the primary coverage or liability upon Scranton in such case or on an equal basis with Farmers; (c) whether if Tri-State for any reason is not primarily liable that Transport should be required to defend Scranton in such action.
Diversity of citizenship and the amount involved establishes - jurisdiction of the subject matter. There arose, however, and still exists a venue question as to Transport. There is the additional contention that the Court’s decision on the merits is erroneous.
Before passing to the problems presented by the appeal, we deem it desirable to designate and more fully describe all parties having any connection with this litigation or the event which caused the death of Harry Tatro, the husband of Martha D. Tatro, out of which this action arose.
Scranton, not a party, is a cooperative which owned and operated a liquified petroleum bulk storage plant in Scranton, North Dakota. Farmers had issued a liability insurance policy to Scranton which covered Scranton’s bulk storage plant and was in effect when the incident occurred giving rise to the coverage question. Austad is a North Dakota corporation that was engaged in the transportation of petroleum .products by motor truck. TriState was authorized to do business in North Dakota and was a resident of that state for venue purposes. Tri-State had issued a policy of liability insurance to Austad which covered the motor equipment used for transporting petroleum products. Harry Tatro was an employee of Austad; Martha D. Tatro, a defendant and appellee, is the widow of Harry Tatro. The complaint alleged that Transport, a Wyoming or Montana corporation, had authority from the I.C.C. to transport petroleum products in other states; leased trucks and drivers from Austad and transported petroleum products in such leased equipment.
The operative facts, stipulated by the parties and so found by the District Court, are as follows. On June 8, 1961, a tractor and tank trailer combination unit, owned by Austad and -driven by Harry Tatro, stopped at the facilities and property of Scranton for the purpose of making a delivery of propane gas. Tatro drove such unit to the unloading area of the bulk plant and hooked up the hoses used on the truck to the truck outlets and to the inlets on the pipeline system maintained by the bulk plant; Tatro was in the process of opening a valve located on top of a storage tank when an explosion occurred, the effect of which was to knock him off the tank, set him afire and inflict injuries which proved fatal. The delivery was made at approximately-midnight at which time no employees, agents, or representatives of Scranton were present or participated in any manner in the subsequent unloading procedures. It was the custom under such circumstances for the driver of the truck making the delivery, to perform everything that was necessary for the unloading and later deliver the papers evidencing such unloading and the quantity unloaded to the manager of the plant, and insofar as the incident here involved is concerned, the driver was acting pursuant to such custom. Tatro’s widow, Martha D. Tatro, sought and received benefits under the North Dakota Workmen’s Compensation Act. Prior to the institution of the present action Martha D. Tatro, individually and as Trustee for the North Dakota Workmen’s Compensation Bureau, brought the wrongful death action against Scranton for damages resulting from the death of her husband, alleging that the death of Tatro was proximately caused by the negligence of Scranton in the construction and maintenance of its storage facilities.
Farmers, while conceding that it is the liability insurer of Scranton, tendered the defense of the Tatro action to Tri-State on the theory that Scranton was an additional insured under the Tri-State policy. This tender of defense was refused by Tri-State.
Early in this litigation, Transport raised the venue question. It filed a motion to dismiss, or in lieu thereof to quash the return of service of process on the ground that it had not been properly served, and that the venue was improper in that all defendants do not reside in the State of North Dakota. Two affidavits dated September 27,1963, were filed in support of the motion — one by Transport’s attorney to the effect that Transport was not doing business in North Dakota when this action was instituted.; that on January 8, 1962, a plan of dissolution was approved by the stockholders of Transport and in pursuance thereof all assets for the corporation were disposed of and the transfer of the assets was completed on January 4,1963; and since that date the corporation existed as a mere “corporate shell” and has had no officers or directors. The other affidavit by the Secretary of State of North Dakota was to the effect that Transport is not and never has been authorized or qualified to transact business in North Dakota according to the provisions of the North Dakota Business Corporation Act. Neither affidavit was controverted.
On January 27, 1964, the trial court entered an order granting Transport’s motion and dismissed the complaint and action against that defendant.
On February 13, 1964, the trial court filed a memorandum opinion on the merits finding that Tri-State’s policy did not provide coverage to Scranton for Tatro’s death and that Tri-State is under no obligation to defend the Martha D. Tatro action. The Court’s opinion is published at 238 F.Supp. 243. Appellant filed a petition for rehearing in which it complained in particular of the Court’s prior action in dismissing Transport from the case. The petition was denied on April 14, 1964, following which, appellant filed a timely notice of appeal.
Appellant’s first point challenges the Court’s dismissal of the action against Transport. The issue brings into prominence Title 28 U.S.C.A. § 1391, the venue statute which in pertinent part provides :
“(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.
*«•***•*
“(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.”
As noted, appellant brought this action in the judicial district of North Dakota, the residence of all defendants with possible exception of Transport. The precise question is whether, for venue purposes, Transport is also a resident of that district. Concededly, Transport was not incorporated in North Dakota and according to the affidavit of the North Dakota Secretary of State had never been authorized to transact business in that state which we assume is tantamount to saying it had not been licensed to do business in North Dakota. The issue is thus narrowed to the third element of § 1391(c), that is, whether Transport was “doing business” in the district. The answer to this question depends upon the meaning of the phrase “in which it is * * * doing business.” Is this requirement satisfied by showing that Transport was doing business in the North Dakota District at the time when the cause of action arose, June 8, 1961, or must it be shown that Transport was doing business in North Dakota when this suit was brought on August 19, 1963?
Apparently the trial court was of the view that the nontrolling time which the “doing business” provision refers to is governed by citizenship determinations as in diversity actions. Thus, in its memorandum opinion dealing with the venue issue the Court stated:
“ * * * Apparently the plaintiff concedes that said defendant L. P. •Gas Transport Company was not doing business in this state at the time of the commencement of this action, but contends that it was so doing at the time the cause of action arose. A decision as to which date is the critical one for this purpose, therefore, should determine the motion. The law has been specifically stated by the Court of Appeals for the Eighth Judicial Circuit. ‘ * * * diversity of citizenship must exist not as of the time the cause of action arises, but as of the time the suit is instituted * * Russell v. New Amsterdam Casualty Company and Consumers Public Power District, 8 Cir., January 6, 1964 [325 F.2d 996]. See also Jansen v. Goos, 8 Cir., 302 F.2d 421 (1962).”
To be sure, the citizenship of the parties at the time of the institution of the action, is controlling in determining whether federal diversity jurisdiction exists. However, jurisdiction of the subject matter — the power and authority of the Court to act, 14 Am.Jur. Courts, § 160; 21 C.J.S. Courts § 15, is not equivalent in meaning to Venue, the place where the power to adjudicate is to be exercised, the place where the suit may be or should be heard, 56 Am.Jur. Venue, § 2; 92 C.J.S. Venue § 1. The terms “jurisdiction” and “venue” should not be confused, “for jurisdiction may not be conferred by consent or waiver upon a court which otherwise would have no jurisdiction of the subject matter of an action; but the venue of an action as fixed by statute may be changed by the consent of the parties and an objection that the plaintiff brought his suit in the wrong county may be waived by the failure of the defendant to make a timely objection.; in either such case the court may render a valid judgment.” 56 Am. Jur. Venue, § 2. Because of these fundamental differences, the tests to be applied in determining whether there is jurisdiction of the subject matter do not necessarily control the resolution of venue questions.
There seems to be a dearth of authority on the precise problem and our research indicates it may be a question of first impression in this circuit. Additionally, the courts that have spoken are not in full accord. Barron and Holtzoff, Vol. I, Sec. 80, Venue, 1964 Pocket Part, states: “It is not settled whether the relevant time for determining if the corporation was doing business in the state is the date when the claim arose or the date when suit was brought.” In Sunbury Wire Rope Mfg. Co. v. United States Steel Corp., 230 F.2d 511 (3 Cir. 1956) the Court stated in effect, without fortifying reasons, that the controlling time was the commencement of the action. That case, however, turned on consent and waiver and we do not regard the Court’s expression as to the time element of controlling importance.
The United States District Court of Maryland has been confronted with the identical situation on two occasions. L’Heureux v. Central American Airways Flying Service, Inc., 209 F.Supp. 713 (Md.1962); Nelson v. Victory Electric Works, Inc., 210 F.Supp. 954 (Md. 1962). In L’Heureux, Chief Judge Thomsen considered the venue law relating to corporate defendants as it existed before the enactment of the Judicial Code of 1948, of which 28 U.S.C.A. § 1391(c) is a part, as well as the purpose and effect of the Act. Of relevance here is Judge Thomsen’s conclusion that “A principal purpose of Congress in enacting sec. 1391(c) was to remove any possible advantage with respect to venue which a corporation might obtain by failing to observe the licensing requirements of a state in which it does business.” 209 F.Supp. at page 715. We agree and are likewise in accord with the view that the purpose of Congress can be fully achieved only if foreign corporations — those that qualify and those which do not — can be sued in the federal court hi actions arising out of business transacted in the state and district where the suit is filed. We believe and hold that Congress intended that the venue requirements of § 1391(c) are satisfied by showing that the defendant corporation was doing business in the district at the time the cause of action arose.
The rule contended for by Transport and applied by the District Court could give to a foreign corporation which was doing business in another state without having qualified in accordance with.the licensing requirements, an unfair advantage. By the expedient of retreating from and ceasing to do business in the judicial district where the cause of action arose out of business done by it, the corporation could insulate itself from litigation in that district and the aggreived party would be required, perhaps at great inconvenience, to seek redress in the judicial district where the corporation was incorporated. We therefore conclude that the District Court erred in dismissing Transport from the action.
Inasmuch as the Court ruled that August 19, 1963 (when this action was brought) is the critical date, it was not required to and did not determine whether Transport was doing business in North Dakota on June 8, 1961, when the cause of action arose which precipitated this lawsuit. The record gives strong indication that it was. Of course, even if Transport is found to be amenable to the Court’s jurisdiction, the judgment on the merits may be the same. We make no intimation in that regard. Our holding simply means that the Court should determine the venue question on the basis of whether Transport was doing business in North Dakota on June 8,1961. If it was, and if service of summons upon Transport was in compliance with the law, then there should be an adjudication of the obligations and liability of Transport in light of the issues presented.
We also suggest by way of caveat that under Rule 12(b) Fed.R.Civ.P. 28 U.S.C.A., a motion raising objections to venue must be filed within twenty days after service of the summons and complaint. Failure to comply with this requirement constitutes a waiver of Rule 12(h) Fed.R.Civ.P.; see Nelson v. Victory Electric Works, Inc., supra, 210 F. Supp. at p. 957. The record fails to disclose the date of service upon Transport, hence we are not in a position to determine whether the objections to venue were timely.
The order dismissing Transport and the judgment on the merits are vacated and the cause is remanded with directions to proceed in accordance with our views herein expressed.
. The Maryland Court, Judge Northrop, reached the same conclusion in the Nelson ease, supra, 210 F.Supp. 954 (1962). Compare R. J. Coulter Funeral Home v. National Burial Ins. Co., 192 F.Supp. 522 (E.D.Tenn.1960) and Sharp v. Commercial Solvents Corp., 232 F.Supp. 323 (N.D.Tex.1964) and see for a general discussion of the venue statute, 1 Moore, Federal Practice, Par. 0.142 [5-3] p. 1489 et seq. (2nd Ed. 1964.)
. Transport is designated as a Wyoming corporation in one part of the record and as a Montana corporation in another part. This uncertainty is not material.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_casetyp1_7-2
|
D
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
In the Matter of Willis R. GIFFORD and Jacqueline M. Gifford, Bankrupts-Appellees, Appeal of THORP FINANCE CORPORATION, Creditor-Appellant. United States of America, Intervenor-Appellee.
No. 81-1174.
United States Court of Appeals, Seventh Circuit.
Reargued May 26, 1982.
Decided Aug. 18, 1982.
Henry F. Field, Friedman & Koven, Chicago, 111., for creditor-appellant.
Michael J. Lund, Frisch, Dudek & Slattery, Ltd., Milwaukee, Wis., for bankruptsappellees.
John Morland, Washington, D. C., for intervenor-appellee.
Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCH-BACH, POSNER and COFFEY, Circuit Judges en banc.
CUMMINGS, Chief Judge.
This is an appeal from an order of a three-judge bankruptcy court that relied on 11 U.S.C. § 522(f)(2)(A) to discharge Thorp Finance Corporation’s nonpossessory, non-purchase-money security interest in various household goods owned by Mr. and Mrs. Gifford. Thorp’s security interest attached to the household goods one month before Section 522(f) of the Bankruptcy Reform Act of 1978 was enacted, raising the issues of whether Section 522(f) applies to Thorp’s security interest and if so whether that application is constitutional.
We first heard arguments on September 21, 1981, and on January 21, 1982, a majority of the hearing panel decided that Section 522(f) did not apply to Thorp’s pre-enactment security interest because such application “would give rise to * * * serious constitutional questions under the Fifth Amendment.” 669 F.2d 468, 470 (7th Cir.). Following a rehearing of the appeal en banc, we now hold that Section 522(f) applies to Thorp’s security interest and that it is not unconstitutional under the Fifth Amendment.
I
On October 4, 1978, Thorp lent the Giffords approximately $3,000 and in return took a security interest in two television sets, a rug, a tape recorder, a washer and dryer, and several pieces of their furniture. The loan was not used to purchase any of the items of collateral, and Thorp did not take possession of the collateral. On June 9, 1980, the Giffords filed a petition in bankruptcy and then sought to avoid the security interest in their household goods and furniture under 11 U.S.C. § 522(f)(2)(A). Section 522(f) provides:
Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under [11 U.S.C. § 522(b)], if such lien is—
(1) a judicial lien; or
(2) a nonpossessory, nonpurchase-money security interest in any—
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
(B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
(C) professionally prescribed health aids for the debtor or a dependent of the debtor.
Sections 522(b) and 522(d)(3) allow the Giffords exemptions for the collateral that is subject to Thorp’s security interest, not to exceed $200 for any particular item. Thus Thorp’s lien “impairs an exemption to which the debtor[s] would have been entitled under [Section 522(b) ].” Because each item of collateral qualifies as a household furnishing, household good, or appliance, all the requirements for application of Section 522(f)(2)(A) are satisfied. Since no item of collateral is worth more than $200, if Section 522(f) is held to apply to Thorp’s pre-enactment security interest, the Giffords may avoid the security interest in its entirety.
Thorp contested avoidance of its lien before the bankruptcy court on the ground that application of Section 522(f) to pre-en7 actment liens would be unconstitutional. The bankruptcy court disagreed and held that Congress intended Section 522(f) to apply to pre-enactment liens and that there is no constitutional problem in doing so. 7 B.R. 814, 817-819 (Bkrtcy.). Thorp has appealed from that decision and we allowed the United States to intervene in the appeal as a respondent.
II
The first question is whether Section 522(f) was meant to apply to security interests that attached prior to its enactment. Section 522(f) was enacted as part of the Bankruptcy Reform Act of 1978 on November 6, 1978. Pub.L.No. 95-598, 92 Stat. 2578 (codified at 11 U.S.C. §§ 101 et seq.). Like the other substantive provisions of the 1978 Bankruptcy Act, however, Section 522(f) does not state when it — as opposed to the rest of the 1978 Act — is to apply. Rather, Congress placed all of its directions for the transition between the old and new bankruptcy laws in Title IV of the 1978 Act. Section 401 of Title IV provides that all former laws relating to bankruptcy are repealed. Section 402(a) states that “[ejxcept as otherwise provided in [Title IV], this Act shall take effect on October 1, 1979.” The combined effect of Sections 401 and 402(a) is to provide as substantive law only the 1978 Act for cases commenced on or after October 1, 1979. See generally 1 Collier on Bankruptcy KH 7-01, 7.02 (15th ed. 1982). Because Title IV provides no exceptions for Section 522(f), that Section must apply to cases filed on or after the effective date of October 1, 1979. Since the Giffords filed for bankruptcy on June 9, 1980, Section 522(f) is applicable to the security interest in their case.
The other Courts of Appeals that have considered whether Section 522(f) applies to pre-enactment security interests agree that it does. Rodrock v. Security Industrial Bank, 642 F.2d 1193, 1196-1197 (10th Cir. 1981) (Section 522(f)(2) applies to pre-enactment security interests), probable jurisdiction noted sub nom. United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108 (1981); In re Ashe, 669 F.2d 105 (3d Cir. 1982) (applying Section 522(f)(1), which permits avoidance of certain judicial liens, to pre-enactment cognovit note); see also In re Webber, 674 F.2d 796, 801-802 (9th Cir. 1982) (Section 522(f)(2) applies to pre-effective date liens). At oral argument, counsel for the United States told us without contradiction that some sixty-five bankruptcy court opinions have also interpreted Section 522(f) to apply to pre-enactment liens. See, e.g., In re Morris, 12 B.R. 321 (Bkrtcy.N.D.Ill.1981); In re Giles, 9 B.R. 135 (Bkrtcy.E.D.Tenn. 1981); In re Pillow, 8 B.R. 404 (Bkrtcy.D. Utah 1981). It is unnecessary to repeat here the reasoning laid out in those opinions. See also 669 F.2d at 475-478 (Cummings, C.J., dissenting). Again according to counsel, only five bankruptcy court opinions disagree.
Thorp has presented one argument that the prior cases do not address, however. A preliminary draft of the transition provisions stated that the new Bankruptcy Act “shall apply in all cases or proceedings instituted after its effective date, regardless of the date of occurrence of any of-the operative facts determining legal rights, duties, or liabilities hereunder.” H.R. 31 [also H.R. 32], 94th Cong., 1st Sess. § 10-103(a) [§ ll-103(a)] (1975), reprinted in Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 Before the House Subcommittee on Civil and Constitutional Rights, 94th Cong., 1st Sess. App. 1 at 321 (1976). Thorp argues that because the above language was criticized by William Plumb in testimony before the House Subcommittee as an improper impairment of vested property rights and then deleted from the final version of the Act, Congress meant to preserve security interests that attached prior to enactment. See Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 Before the House Subcommittee on Civil and Constitutional Rights, 94th Cong., 1st Sess. 2034, 2066-2067 (1976). But Mr. Plumb was only one of many witnesses to testify before Congress and there is no indication that the language was omitted because of fear of unconstitutionality. We therefore attach little weight to his concerns and construe the statute as it was finally enacted, requiring whole application of the new Act to bankruptcies filed on or after October 1, 1979, with immaterial exceptions.
Ill
The question presented by this appeal, then, is whether application of Section 522(f) to avoid Thorp’s pre-enactment lien in the Giffords’ household goods violates the Fifth Amendment. Thorp argues primarily that Section 522(f) works an uncompensated taking of its property rights in the collateral, and alternatively, that Section 522(f) is a violation of substantive due process.
The two Courts of Appeals that have considered whether avoidance of a pre-enactment lien violates the Fifth Amendment have split on the issue. In Rodrock v. Security Industrial Bank, 642 F.2d 1193 (10th Cir. 1981), probable jurisdiction noted sub nom. United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108, the Tenth Circuit held that “Congress may not under the bankruptcy power completely take for the benefit of a debtor rights in specific property previously acquired by a creditor.” 642 F.2d at 1198. The Rodrock Court did not state whether Section 522(f) effected a taking, deprived the creditor of property without due process, or was simply beyond Congress’ bankruptcy powers to enact. Instead, the Court relied completely upon the Supreme Court’s decision of Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, which invalidated relief provisions of the Frazier-Lemke Act of 1934.
To the contrary, the Third Circuit in In re Ashe, 669 F.2d 105 (3d Cir. 1982) held that application of Section 522(f) to pre-enactment judicial liens did not violate the Fifth Amendment. The Ashe Court stated, “Only if a taking for public use is found does the just compensation standard apply. Plainly Section 522(f)(1) is an economic regulation rather than a taking for public use.” 669 F.2d at 110. Since this instance of economic regulation had a rational basis, the Third Circuit held that Section 522(f) comports with the requirements of due process. Id. at 110-111.
The Ninth Circuit recently held that the Fifth Amendment did not prohibit application of Section 522(f) to security interests in household goods that attached during the eleven-month period between enactment and the effective date of the new Act. In re Webber, 674 F.2d 796 (9th Cir. 1982). Quoting a dictum in our former majority opinion, the two-judge majority noted, also in dictum, “We agree that a ‘property right is of value regardless of the worth of the object in which it is held, and is protected from governmental appropriation by the taking clause of the Fifth Amendment.’ ” Id. at 803 n. 16 (quoting 669 F.2d at 473). But the quoted language is only a truism-all property is protected by the taking clause to the extent that it applies — and the Ninth Circuit majority did not decide the constitutional question before us. Judge Sehroeder’s concurrence did not reveal her views on pre-enactment liens, and she wrote separately only to state that application of Section 522(f) to post-enactment, pre-effective date liens “does not present a substantial question, much less a close one.” Id. at 804.
As explained infra, we agree with the Third Circuit’s opinion in In re Ashe that Section 522(f) as applied to pre-enactment security interests does not violate either the due process or taking clauses of the Fifth Amendment.
IV
Section 522(f) quite clearly is valid under the due process clause. In the early years of this century, Congressional legislation was closely scrutinized by the courts under the rubric of “substantive due process.” See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937. But that approach has “long since been discarded” by the courts (Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93), and it is now well established that economic regulation will be sustained against substantive due process challenges provided the regulation has a rational basis. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464, 99 L.Ed. 563; United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234; In re Ashe, supra, 669 F.2d at 110. Even when a question of retroactivity is involved, “legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and * * * the burden is on the one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752; see also Brach v. Amoco Oil Co., 677 F.2d 1213 at 1224-25 (7th Cir. 1982). Indeed, under the bankruptcy clause of the Constitution, “Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as to be incompatible with fundamental law * * Hanover National Bank v. Moyses, 186 U.S. 181, 192, 22 S.Ct. 857, 862, 46 L.Ed. 1113.
The basis for Section 522(f) is both rational and compatible with fundamental law. Section 522(f) was enacted as part of a larger program “to make [traditional bankruptcy protections] more effective for non-business debtors.” 123 Cong.Rec. 35444 (1974) (statement of Rep. Rodino). Since the previous major revision of the bankruptcy laws in 1938, consumer financing had burgeoned into a major industry, and consumer bankruptcies had come to account for nearly 90% of all bankruptcy cases filed. Id.; H.R.Rep.No. 595, 95th Cong., 1st Sess. 4, 116 (1977). The existing bankruptcy law, however, had been addressed primarily to the problems involved in business bankruptcies and had relied on state exemption laws to protect consumer debtors. The state exemptions were quickly outmoded as creditors “developed techniques that enablefd] them to avoid the effects of a debtor’s bankruptcy.” H.R.Rep.No. 595 at 116-117, U.S.Code Cong. & Admin.News 1978, p. 6077.
In particular, security interests in consumer property, which formerly had been difficult to establish, became widespread following adoption of Article Nine of the Uniform Commercial Code in the middle 1960’s. See Schwartz, Security Interests and Bankruptcy Priorities: A Review of Current Theories, 10 J. Legal Stud. 1, 4-6 (1981). The result was that consumer debtors often came out of the bankruptcy proceedings “little better off than they were before.” Id. at 117, U.S.Code Cong. & Admin.News 1978, p. 6077.
Finding that “there is a Federal interest in seeing that a debtor that goes through bankruptcy comes out with adequate possessions to begin his fresh start” (H.R. Rep.No. 595 at 126, U.S.Code Cong. & Admin.News 1978, p. 6087), Congress estab-' lished a framework to ensure that debtors would not be left completely destitute after bankruptcy. Congress began by providing a system of federal exemptions upon which a debtor might rely as an alternative to less favorable state exemptions. See 11 U.S.C. §§ 522(b), 522(d); H.R.Rep.No. 595 at 126-127. Congress was aware, however, that the existence of a right to exempt certain property from the bankrupt estate was not alone sufficient to provide a fresh start for the debtor. The Report of the Commission on Bankruptcy Laws of the United States advised Congress that valid exemptions often had been lost or denied under prior law, and recommended that neither waivers of exemptions nor nonpurchase-money security interests in household goods, wearing apparel, and health aids be enforceable. H.R.Doc.No. 137, 93d Cong., 1st Sess., Part I at 169, 170, 173 (1973). Congress enacted the Commission’s recommendations; Section 522(e) makes unenforceable a waiver of exemptions and, as noted above, Section 522(f)(2) allows the bankrupt to avoid a nonpossessory, nonpurchase-money lien in certain household and personal goods.
The House Report explained why it was necessary for the debtor to be able to avoid such liens:
Frequently, creditors lending money to a consumer debtor take a security interest in all of the debtor’s belongings, and obtain a waiver by the debtor of his exemptions. In most of these cases, the debtor is unaware of the consequences of the forms he signs. The creditor’s experience provides him with a substantial advantage. If the debtor encounters financial difficulty, creditors often use threats of repossession of all of the debtor’s household goods as a means of obtaining payment.
In fact, were the creditor to carry through on his threat and foreclose on the property, he would receive little, for household goods have little resale value. They are far more valuable to the creditor in the debtor’s hands, for they provide a credible basis for the threat, because the replacement costs of the goods are generally high. Thus, creditors rarely repossess, and debtors, ignorant of the creditors’ true intentions, are coerced into payments they simply cannot afford to make.
The exemption provision allows the debtor, after bankruptcy has been filed, and creditor collection techniques have been stayed, to undo the consequences of a contract of adhesion, signed in ignorance, by permitting the invalidation of nonpurchase money security interests in household goods. Such security interests have too often been used by overreaching creditors. The bill eliminates any unfair advantage creditors have.
H.R.Rep.No. 595 at 127 (footnote omitted), U.S.Code Cong. & Admin.News 1978, p. 6088. See also In re Pillow, 8 B.R. 404, 406 (Bkrtcy.D.Utah 1981). Under the rule in Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004, a lien even in exempt property survives the bankruptcy discharge. Since Congress specifically stated that it was adhering to this rule (H.R.Rep.No. 595 at 361), without the lien-avoidance provisions of Section 522(f), liens such as Thorp’s would remain enforceable after the close of the bankruptcy proceedings.
Section 522(f) is narrowly drawn to permit avoidance only of nonpossessory, nonpurchase-money security interests in the listed items and only to the extent that these items are exempted property under Section 522(b). Section 522(f) is thus neither an irrational nor arbitrary means of effectuating a legitimate Congressional purpose under the bankruptcy laws — giving debtors “ ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Perez v. Campbell, 402 U.S. 637, 648, 91 S.Ct. 1704, 1710, 29 L.Ed.2d 233 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230). Thorp nevertheless argues that Section 522(f) will have the supposedly irrational effect of reducing nonpurchase-money credit extended to consumers such as the Giffords, as finance companies such as Thorp withdraw from the market. Indeed, all bankruptcy legislation makes borrowing by potential future bankrupts more difficult or expensive. See R. Posner, Economic Analysis of Law 293 (2d ed. 1977). “If Congress goes too far in undermining the security for extensions of credit when exercising plenary legislative power under the bankruptcy clause, the result may be that credit will be unavailable. But that is a matter of policy judgment for the legislative branch.” In re Ashe, supra, 669 F.2d at 111. We see no reason based on substantive due process to substitute our views “on the subject of Bankruptcies” (n. 6 supra) for those of Congress.
V
The remaining issue is whether avoidance of Thorp’s pre-enactment security interest is an uncompensated taking proscribed by the Fifth Amendment.
There is no “ ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631. Rather than employing some single test of fairness {e.g., Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165 (1968)) or economic efficiency (e.g., Berger, A Policy Analysis of the Taking Problem, 49 N.Y.U.L.Rev. 165, 185-191 (1974)), a taking analysis is bound up with the particular facts of each case. Nevertheless,
[i]n engaging in these essentially ad hoc, factual inquiries, the [Supreme] Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, [369 U.S. 590,] 594 [82 S.Ct. 987, 990, 8 L.Ed.2d 130]. So, too, is the character of the governmental action. A “taking” may-more readily be found when the interference with property can be characterized as a physical invasion by government, see, e.g., United States v. Gausby, 328 U.S. 256 [66 S.Ct. 1062, 90 L.Ed. 1206] (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.
Penn Central, supra, 438 U.S. at 124, 98 S.Ct. at 2659. Again, in Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332, the Supreme Court prescribed the two factual foci for a taking determination: “[1] the economic impact of the regulation, its interference with reasonable investment backed expectations and [2] the character of the governmental action * * Application of those factors to Thorp’s security interest in the Giffords’ household goods shows that the lien avoidance permitted by Section 522(f) does not contravene the taking clause.
The “Property” Interest Affected
First, the “investment backed expectations” interfered with are less than substantial. The cases that Thorp cites in which the Supreme Court found unconstitutional takings of liens are distinguishable because they involved much more substantial interests. Thorp’s nonpossessory, nonpurchasemoney security interest is far from “property” of the same importance as the farm mortgages taken in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, or the material-men’s liens on ships taken in Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554. The types of liens in Rad-ford and Armstrong attach to property of the debtor that has directly benefited from the loan or work done. A farm, for example, is mortgaged to buy land, seed, fertilizer or tools. A materialman’s lien attaches to a ship because the materialman has supplied the ship with material or labor. In either case, if the underlying debt is unpaid the creditor has a direct property interest in the objects that were purchased or created with the loaned capital or effort.
In contrast to such purchase-money interests, Thorp’s expectations reside in the threat of foreclosure rather than in the collateral. Unlike the advances in Rad-ford and Armstrong, the borrowed money here was not lent to purchase or improve the household goods listed in the security agreement. The Thirteenth Amendment prohibition against slavery and involuntary servitude prevents a creditor from taking a property interest in the direct beneficiary of his loan, the consumer. Therefore, as here, the creditor must settle for a security interest unrelated to the debt, such as in home furnishings needed by the consumer for ordinary living, and the creditor’s “reasonable investment backed expectations” are reduced accordingly. As several bankruptcy courts have recognized:
(1) there is no direct relationship between the value of the household goods taken as collateral for the consumer loan and the amount of the loan as exists [, for example,] in a mortgage of real estate;
(2) the value of the household goods is often nominal whereas realty has a measurable value comparable to the amount of the loan secured; and (3) the lender making small consumer loans, unlike a mortgagee, does not view a security interest in household goods as a potential substitute for the debt. * * * [T]hese courts have concluded that, since the household goods given as security have little or no actual monetary value to the creditor, whatever property interest the creditor has in the collateral does not rise to the level of a mortgagee’s property rights in realty.
Matter of Ward, 14 B.R. 549, 561 (S.D.Ga. 1981), summarizing In re Pillow, 8 B.R. 404, 418-420 (Bkrtcy.D.Utah 1981); In re Goodrich, 7 B.R. 590 (Bkrtcy.S.D.Ohio 1980); In re Webber, 7 B.R. 580, 584-586 (Bkrtcy.D.Or.1980); In re Curry, 5 B.R. 282 (Bkrtcy.N. D.Ohio 1980); and In re Rutherford, 4 B.R. 510 (Bkrtcy.S.D.Ohio 1980).
Thorp contends that the market value of the collateral is irrelevant to whether its security interest should be characterized as “property” and whether the government must pay for an injury to the security interest. The intervenor United States, on the other hand, argues that Thorp’s lien is merely an incident to a contractual right to repayment of a debt. Of course, the academic difference between contract and property rights is that the federal government may freely impair only the former, and even among private persons, contract rights are freely avoidable at “market value” whereas the owner of a property right may demand any payment to release the right or refuse to part with the property at
any price. See Calabresi & Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv.L. Rev. 1089 (1972). The “property” interest that Thorp asserts here is that it should be allowed to continue threatening to take possession of the household goods as a means of inducing the Giffords to repay the $3,000. The value of such a “property” interest is independent of the “contract” value of the lien, i.e., the actual market value of the household goods. By failing to request the United States to compensate for the alleged taking, Thorp in effect concedes that it has no interest in the latter amount. Moreover, Congress found during its legislative fact-gathering that creditors such as Thorp have no intention of repossessing the collateral.
The taking clause confuses Thorp’s dichotomy between contract and property, however, insofar as it would permit the government to take liens for a public purpose upon payment of only “just compensation.” Under the taking clause, the value of Thorp’s security interest can in no event be greater than its fair market or “just” value, which would be the market value of the collateral. See Cudahy Bros. Co. v. United States, 155 F.2d 905, 906-907 (7th Cir. 1946) (“just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined”); In re Pillow, 8 B.R. 404, 411 (Bkptcy.D.Utah 1981) (“Historically, lien rights have entitled their holders to the value of collateral and no more in bankruptcy”). There would be no justice in compensating Thorp based on some extortion value of the security interest. See Gordon, Unconscionability in Bankruptcy: The Federal Contribution to Commercial Decency, 66 Nw.U.L.Rev. 741, 765 (1972). Thorp knew or should have known at the time it entered into this security agreement that Congress was in the process of amending the bankruptcy laws to permit avoidance of such security interests. At best, assuming the courts would hold that Section 522(f) effects a taking, Thorp might have anticipated recovering as “just compensation” the value of the collateral. But since by all estimates the value of the collateral involved here is insignificant, Thorp’s “reasonable investment backed expectations” were insignificant also.
Even if the label “property interest” is not illusory, the impact of Section 522(f) upon Thorp’s lien is insubstantial. First, Section 522(f) allows avoidance of a lien only to the extent that the debtor has an exemption under Section 522(b), here for up to $200 per item. The lien is not avoidable beyond that amount, and accordingly Section 522(f) only minimally affects a creditor whose investment-backed expectations reside in truly valuable collateral. Second, Section 522(f) does not apply until there is a bankruptcy, by which time the creditor’s expectations of repayment are surely at a minimum. In this case, Thorp had some 20 months following enactment of Section 522(f) prior to the Giffords’ bankruptcy during which to watch the Giffords more closely, and in the case of their default to enforce the security interest or threaten to do so. Although we do not know the facts in the instant case, ordinarily we might suppose that a debtor misses payments and is dunned by his creditors prior to filing for bankruptcy. If that were the case here, this particular lending agreement would have allowed Thorp to demand immediate repayment of the outstanding indebtedness. Thorp might also have attempted to negotiate a different lien on non-exempt property of the Giffords. Cf. Texaco, Inc. v. Short, 454 U.S. 516, 530-31, 102 S.Ct. 781, 792-93, 70 L.Ed.2d 738 (1982) (Indiana Mineral Lapse Act does not effect a taking because plaintiff failed to take advantage of an opportunity to take action that would have prevented loss). Finally, Congress has not entirely destroyed Thorp’s expectation of repayment but instead has substituted for it the rights of an unsecured creditor, which need not be equal in value to the expectations allegedly taken. “While these rights may well not have constituted ‘just compensation’ if a ‘taking’ had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on [Thorp] and, for that reason, are to be taken into account in considering the impact of the regulation.” Penn Central, supra, 438 U.S. at 137, 98 S.Ct. at 2666. Together, these elements indicate that Section 522(f) is a de minimis interference that does not rise to the level of a taking under the Fifth Amendment.
The Character of the Government Action
Regarding the character of the government action, Section 522(f) is a dual adjustment of benefits and burdens between the debtor and his creditors, and among a narrow class of secured creditors and the debt- or’s general creditors. The rationality of this adjustment of benefits and burdens between debtor and creditor was discussed in this opinion’s substantive due process section supra. We note that the adjustment among the different types of creditors is rational also. It seems unlikely that Thorp had a significantly greater expectation of repayment than the Giffords’ other unsecured creditors, such as unsecured retailers, landlords, and credit-card companies. It is even more unlikely that any difference in expectations should be allowed a veto over Congress’ plenary power to make bankruptcy law. A fair reordering such as this of the competing claims of creditors to available funds of a bankrupt should be immune to a taking challenge. See Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 161 (1971).
The government action here is not of the nature of a physical invasion since Section 522(f)(2) does not apply to lenders who have possession of the collateral pursuant to possessory security interests. Common sense suggests a distinction between interfering with a limited class of Uniform Commercial Code remedies for nonpayment of debt by a bankrupt, and such governmental actions as bolting cable television equipment onto the roof of a building, Loretto v. Teleprompter Manhattan CATV Corp.,-U.S. ——, 102 S.Ct. 3164, 73 L.Ed.2d 868, allowing the public to use a formerly private pond, Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332, or ousting a tenant from his leasehold, United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; Devines v. Maier, 665 F.2d 138 (7th Cir. 1981). The former is impairment of an abstract incident to a contract right, while the latter are physical invasions of tangible property. The type of lien here is a property right in the broad sense that, except for the government’s right to condemn for a public purpose, its holder may in certain circumstances exclude others from enjoying particular resources. But such a lien is not a property right in the sense that its holder possesses anything more than a bare legal title, or ever anticipates taking possession of the underlying collateral except perhaps as needed to make its more profitable threats of repossession credible. Our conception of property has not become so liberal that we can no longer distinguish, at least in narrow instances such as these, between property interests that are manifested by possession and transferred by delivery, and property interests merely photocopied onto the backside of consumer loan agreements.
Nor does Section 522(f) inure to the government’s own benefit. Thus this case is again distinguishable from Armstrong, supra, where the government “took” materialmen’s liens that encumbered government-owned ships. As the Third Circuit has stated as to the takings dichotomy, Section 522(f) is ordinary “economic regulation rather than a taking for public use.” In re Ashe, supra, 669 F.2d at 110.
In deciding whether this character of action is a taking, we must remember that an affirmative
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_casetyp1_1-3-1
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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 issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Richard ADAMS, William Francis Elliott, James Henry Morrell, Jr., Elba Pintado-Otero, Luciano Morra, William Hinton Hockaday, Larry Henton Hockaday, James W. McMullen, Jerry Gray Hockaday, Defendants-Appellants.
No. 85-3315.
United States Court of Appeals, Eleventh Circuit.
Sept. 15, 1986.
H.B. Edwards, III, Valdosta, Ga., for Adams.
John F. O’Donnell, Ft. Lauderdale, Fla., for Elliott.
Paul D. Lazarus, Ft. Lauderdale, Fla., for Morrell.
John Lipinski, Miami, Fla., for Otero.
Armando Garcia, Tallahassee, Fla., for Morra.
Clyde M. Taylor, Tallahassee, Fla., for W.H. Hockaday.
L. Sanford Selvey, II, Tallahassee, Fla., for L.H. Hockaday.
Clifford L. Davis, Tallahassee, Fla., for McMullen.
Judith Dougherty, Tallahassee, Fla., for J.G. Hockaday.
Barbara Schwartz, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Before RONEY, Chief Judge, CLARK, Circuit Judge, and GIBSON , Senior Circuit Judge.
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
FLOYD R. GIBSON, Senior Circuit Judge:
The appellants challenge their narcotic related convictions on several grounds, including improper jury contact, prosecutorial misconduct, and sufficiency of the evidence. For the reasons discussed below, we affirm their convictions.
The government secured an eight count indictment charging nineteen individuals with various narcotics crimes as a result of their participation in a marijuana smuggling operation. The case involves two separate importations of marijuana. The first occurred in September 1979 and involved the vessel “Christine.” The Christine sailed to the Caribbean where it met a large ship that was carrying several thousand pounds of marijuana. The Christine took on 6,000 pounds of marijuana and sailed for Florida. The vessel anchored about twelve miles off the shore of Stein-hatchee, Florida. A helicopter off-loaded the marijuana and transported it to a “stash site” near Greenville, Florida. The second importation occurred in October 1979 and involved a freighter that was anchored off the coast of northern Florida. The freighter had on board several thousand pounds of marijuana. The marijuana was off-loaded by helicopter and by small boats, and taken to the stash site. Twelve of the nineteen individuals named in the indictment were tried and convicted by a jury for their participation in these importations. Nine of those twelve defendants now appeal.
I. IMPROPER JURY CONTACT
All nine appellants take issue with the district court’s ruling on the “improper jury contact” issue. Before proceedings resumed in the morning of the day on which closing arguments were given, the trial judge was informed by the marshal that one of the jurors had requested to speak to the judge. Juror Adams was brought to the judge’s chambers where, in the presence of the judge, his court personnel, and the court reporter, Juror Adams disclosed that she had been contacted on the previous night by a woman who made reference to the trial and to one of the defendants, Joe Reams. After discussing the details with the judge, Adams stated that she had not mentioned the incident to the other jurors. The judge excused Adams and replaced her with an alternate pursuant to Fed.R.Crim.P. 24(c). Adams was instructed not to discuss the incident with anyone. To avoid her having any contact with the jury, the judge had Adams wait in his chambers until the jury returned to the courtroom, at which time Adams left the courthouse. When proceedings resumed, the judge informed the parties and their counsel, outside the presence of the jury, that he had excused and replaced “the Juror Lula Adams because of a matter that developed overnight that she brought to my attention.” No inquiry was made by the government or by the defendants. When the jury was brought into the courtroom, the judge repeated that Juror Adams was excused because of “something [that] developed overnight.”
After the jury returned its verdicts, the judge interviewed the jurors individually and without counsel present. The judge learned that Juror Adams had in fact mentioned the incident in the jury room minutes before she disclosed to the judge that she had been contacted. The judge learned that when Adams arrived at the courthouse that morning, she began discussing the incident with a few jurors, but was stopped by the jurors when she revealed that the woman who approached her mentioned the trial and defendant Joe Reams. The other jurors told Adams to see the judge immediately about the incident. Adams then left the jury room and requested to see the judge. Transcripts of these post-verdict interviews and the interview with Juror Adams were prepared and given to the parties.
After counsel had an opportunity to review these transcripts, the court again interviewed the jurors separately, but with the parties and their counsel present. Counsel were allowed to submit questions to the judge, who questioned the jurors. The interviews revealed that two of the twelve jurors did not know that a juror had been contacted. The other ten jurors were aware to various degrees that Adams had been contacted. Five jurors knew that she had been contacted, but were unaware that a name had been mentioned. The other five jurors knew that she had been contacted and that Reams’ name was mentioned. The alternate also knew of a contact, but was unaware of any names mentioned.
The court found that the jury’s deliberations were not biased by the improper contact. The jurors testified that after Adams left the jury room the incident was never again discussed. Each juror testified that the improper contact did not affect the deliberations and had no bearing whatsoever on the verdicts. The court noted that the jurors were candid and forthcoming in their responses to the questions. No juror hesitated or was reluctant in answering. The court concluded that the defendants were not prejudiced, and denied all motions for mistrial and new trial.
The appellants contend that they were deprived of their constitutional right to be present at all stages of the trial and their parallel right pursuant to Fed.R.Crim.P. 43 when the court interviewed Juror Adams and the other members of the jury outside their presence and the presence of counsel. The appellants also contend that the court erred in not examining each juror in the presence of counsel immediately upon discovering that Juror Adams had been contacted. Finally, they contend that the court erred in denying their motion for new trial because they were prejudiced by the improper contact.
We hold that the appellants’ constitutional right to be present at every stage of the criminal proceedings was not violated by the court’s interview of Juror Adams. “ ‘[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.’ ” United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459-60, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring in judgment)). See United States v. Watchmaker, 761 F.2d 1459, 1466 (11th Cir.1985) (where trial judge took great care in framing his comments, where transcripts were made available to counsel, and where post judgment motions provided opportunity to explore any possible prejudice, there was no due process violation), cert. denied, — U.S. —, —, 106 S.Ct. 879-80, 88 L.Ed.2d 917, 917 (1986). We also hold that although the better practice would have been to notify the parties and their counsel immediately upon learning that Adams had been improperly contacted, the failure to do so and the failure to examine immediately the other jurors in the presence of the parties and their counsel does not constitute reversible error in this case because in any event the other members of the jury were not prejudiced by the improper contact. The post-verdict interviews in the presence of the parties and their counsel sufficiently demonstrate this absence of prejudice. The district judge should be afforded a considerable measure of discretion in handling these inadvertent situations.
This court recently reviewed the relevant case law in United States v. Caldwell, 776 F.2d 989, 997-98 (11th Cir.1985), and concluded that the cases fall along a continuum. At one end, the cases focus on the certainty that some impropriety exists. At the other end of the continuum, the cases focus on the seriousness of the accusation of impropriety. “The more serious the potential jury contamination, especially where alleged extrinsic influence is involved, the heavier the burden to investigate.” Id. at 998 (citing United States v. Brantley, 733 F.2d 1429 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); United States v. Forrest, 620 F.2d 446 (5th Cir.1980)). We are concerned here with the latter end of the continuum and are guided by United States v. Forrest, which is cited in both United States v. Brantley and United States v. Phillips.
Forrest involved a similar contact to that involved in the case at bar. Prior to closing arguments a juror in the Forrest case told the trial judge that she was approached by her niece in an effort to influence her to acquit the defendants. The discussion between the juror and the judge, however, took place in the judge’s chambers in the presence of counsel for both parties. The tainted juror assured the judge that the other jurors did not know of the contact. The court excused and replaced the juror, but did not examine the other jurors. The defendants were convicted. On appeal, the Fifth Circuit remanded for a hearing to determine whether the other members of the jury were prejudiced. The court of appeals held that the trial court’s investigation into the improper contact was inadequate, and that a tainted juror’s testimony that the other jurors knew nothing about the improper contact is an insufficient basis on which to conclude that the other jurors have not been contaminated. Forrest, 620 F.2d at 457-58. “Only the other jurors can enlighten [the court] properly on this subject.” Id. at 457.
The appellants contend that the Forrest examination of the other jurors in this case should have taken place before rather than after the verdicts were rendered. Although Forrest can be read to suggest that the examination of the jurors should take place if possible before the verdicts are rendered, failure to do so in this case is not reversible error because the post-verdict interviews in the presence of the parties and their counsel demonstrate that the jurors were not prejudiced. Such post-verdict interviews are constitutionally sufficient to decide allegations of juror impartiality. See Smith v. Phillips, 455 U.S. 209, 217-18, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). “The crucial issue is the degree and pervasiveness of the prejudicial influence.” United States v. Williams, 568 F.2d 464, 470 (5th Cir.1978). We have reviewed the transcript of the post-verdict interviews and conclude that the district court’s findings are not clearly erroneous. The jurors were not prejudiced by the improper contact. We hold, therefore, that the district court did not abuse its discretion in denying the motions for new trial on the basis of improper jury contact.
II. PROSECUTORIAL MISCONDUCT
The appellants contend that the following remarks made by the prosecutrix during the rebuttal portion of her closing arguments denied them a fair trial:
MS. SCHWARTZ (Prosecutrix): And as Bart Carver told you, dope dealers deal with dope dealers, and you have to know, you don’t find a swan in the sewer, and that’s what you get when — . [objection] [sustained]
Record XXXIII at 86.
MS. SCHWARTZ: I believe that the Government has proven the Defendants guilty — . [objection]
THE COURT: Continue. I got your point.
MRS. SCHWARTZ: I believe that the Government has proven, with the testimony and the evidence, that the Defendants are guilty beyond a reasonable doubt, [objection]
THE COURT: Continue.
Record XXXIII at 98-99. The appellants argue that the comment about “dope dealers” and “sewers” was inflamatory because it depicts the defendants as drug dealers emanating from the sewer. Their argument is without merit. The appellants have taken the prosecutrix’ statement out of context. The record clearly indicates that the prosecutrix was not referring to the defendants. Rather, she was referring to the government witnesses, whose credibility had been attacked by defense counsel on cross-examination and in closing arguments. The prosecutrix was merely reminding the jury that the government had conceded all along that its witnesses were drug dealers. Record XXXIII at 85. With respect to the remarks concerning the guilt of the defendants, the appellants contend that the prosecutrix’ expression of her personal opinion denied them a fair trial. We disagree. “When the prosecutor voices a personal opinion but indicates this belief is based on evidence in the record, the comment does not require a new trial.” United States v. Granville, 716 F.2d 819, 822 (11th Cir.1983), aff'd on rehearing, 736 F.2d 1480 (11th Cir.1984). A prosecutor may say, “ T believe the evidence has shown the defendant’s guilt, [but not,] I believe that the defendant is guilty.’ ” United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978) (citations omitted). The prosecutrix’ statements in the case at bar are consistent with those allowed in Granville and Morris. We conclude, therefore, that the prosecutrix’ comments were within permissible bounds.
Appellant Pintado-Otero contends that the district court erred in denying her motion for a mistrial as a result of the following statement by a government witness:
I was told over the radio or telephone, I forget, when I was called to set up surveillance, that we had a group of Latins that were probably in town to do a dope deal and that they were making phone calls to known dopers in Miami or somewhere south.
Record XXI at 130. This statement was made despite the district court’s previous instruction to the government that its witnesses were not to testify that telephone calls were made to “known drug smugglers.” Pintado-Otero argues that the witness’ remark implies that Pintado-Otero, one of only two Latin defendants, was a narcotics dealer from Miami, making phone calls to her cohorts — “known dopers.” Pin-tado-Otero argues that the government produced no evidence, however, that she was involved in any prior narcotics transactions. Pintado-Otero concludes that consequently the remark was prejudicial.
We hold that the district court properly denied the motion for mistrial. When the evidence is withdrawn from the jury with an instruction to disregard it, “the error is cured unless the evidence is so highly prejudicial as to render the error incurable.” United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984), cert. denied, — U.S. —, 106 S.Ct. 62, 88 L.Ed.2d 51 (1986). The testimony in this case was not so highly prejudicial as to render the error incurable. Indeed, any prejudice as a result of the remark was cured by the court’s immediate curative instruction, Record XXI at 145, and minimized by the fact that the remark was not repeated or referred to thereafter. See United States v. Hernandez, 750 F.2d 1256, 1259 (5th Cir.1985) (in reversing conviction the court emphasized that no instruction was given to disregard the testimony and the prosecutor attempted to exploit the prejudicial testimony in closing arguments).
III. IMPEACHMENT EVIDENCE
Appellants McMullen and the Hockadays were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. Coconspirator and government witness M.L. Tucker implicated the defendants in these crimes. Through cross-examination defense counsel revealed that Tucker was serving time in prison for other crimes when he agreed to cooperate with federal officials in return for his early release from prison and immunity from prosecution for his involvement with the appellants in this case. Also on cross-examination, Tucker was asked whether his wife gave birth to their child while Tucker was in prison. Tucker responded that his child was born after he was released from prison. As part of the defendants’ case, appellant Jerry Hockaday attempted to introduce a hospital medical record through the testimony of the hospital records custodian. The medical record indicated that a woman gave birth to a child on September 9, 1982, while Tucker was in prison, and stated that Tucker was the father. Defense counsel argued at trial that the medical record was relevant for two reasons: first, it demonstrated that Tucker lied on cross-examination about the date of his child’s birth; and second, it revealed that Tucker had an additional motive to obtain an early release from prison — to be with his child. The court sustained the government’s objection that this was impeachment evidence as to a collateral matter. The appellants contend that the court erred in refusing to admit the record into evidence.
We hold that the district court did not err in refusing to admit the medical record. The birth date of Tucker’s child is clearly a collateral matter on which Tucker cannot be impeached by extrinsic evidence. See United States v. Russell, 717 F.2d 518, 520 (11th Cir.1983). Further, although the importance of exposing a witness’ motivation to cooperate with the prosecution has been long recognized in this circuit, see generally Jenkins v. Wainwright, 763 F.2d 1390, 1392 (11th Cir.1985) (and cases cited therein), cert. denied, — U.S. —, 106 S.Ct. 2290, 90 L.Ed.2d 730 (1986), we believe the cross-examination of Tucker sufficiently demonstrated his motivation to cooperate with the prosecution so that the evidence sought to be admitted was merely cumulative.
IV. SUFFICIENCY OF THE EVIDENCE
Appellants Elliott, Otero, and Morra challenge the sufficiency of the evidence against them. We review the evidence against the appellants in the light most favorable to the government, drawing all reasonable inferences in favor of the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
£7] Appellant Elliott was convicted of conspiracy to possess marijuana and possession of marijuana with the intent to distribute. The government’s evidence against Elliott consists of the testimony of coconspirator and government witness, George Cottage. Cottage testified that he had known Lem North, one of the masterminds of the scheme to import marijuana, for several years. In September 1979, North invited Cottage to meet North in Valdosta, Georgia, for the purpose of “brokering” the marijuana from the first importation. Cottage invited appellants Elliott and Morrell along, explaining to them the purpose of the trip. Morrell drove. The trip was unsuccessful, however, and the three returned to Florida. In November 1979, after the second importation and upon Morrell’s request, Cottage accompanied Morrell and Elliott to Valdosta, Georgia, to meet Lem North again. Before they checked into their hotel rooms, Elliott, Morrell, and Cottage met with North. North offered them a sample (three fourths of a pound) of marijuana for their prospective customers. Morrell took the sample and he and Elliott went to their adjoining hotel rooms. When Cottage arrived the prospective buyers were already in the rooms. Shortly thereafter, the police entered the rooms and found Morrell, Elliott, and Cottage together with the prospective buyers and the sample of marijuana. The strong odor of marijuana burning was present in the room. The sample matched the marijuana found at the stash site.
Elliott argues that this evidence only demonstrates his “ ‘mere presence’ in a suspicious climate.” We disagree.
For Elliott to be convicted of conspiracy to possess marijuana with the intent to distribute, “the government was required to prove beyond a reasonable doubt the existence of a conspiracy, his knowing participation in it, and his criminal intent.” United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). For Elliott to be convicted of the possession charge, “the government’s burden was to prove beyond a reasonable doubt that he knowingly possessed the marijuana, either actually or constructively, and that he intended to distribute it.” Id. We agree with Elliott that “mere presence” is insufficient to establish guilt on these charges. As this court recently recognized in Cruz-Valdez, however, the evidence in these cases “establishes not mere presence but presence under a particular set of circumstances.” Id. at 1545. We hold that from the circumstances in this case the jury could find Elliott guilty beyond a reasonable doubt as charged. See United States v. Walker, 720 F.2d 1527, 1538 (11th Cir.1983) (the existence of a conspiracy may be proved by circumstantial evidence, including inferences from the conduct of the alleged participants), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). The evidence demonstrated that Elliott accompanied Morrell to Valdosta not once but on two separate occasions for the same purpose — to broker the imported marijuana. The logical inference to be drawn from this evidence is that Elliott and Morrell had agreed to broker the marijuana and were knowingly participating in that agreement. Elliott accompanied Morrell to North’s hotel room where Morrell, Elliott’s coconspirator, obtained a sample. Both Elliott and Morell then met their prospective buyers, who sampled the marijuana. We believe that the jury also could have reasonably inferred that Elliott together with Morrell possessed the marijuana with the intent to distribute.
Appellant Pintado-Otero was convicted of conspiracy to possess marijuana with the intent to distribute, possession of marijuana with the intent to distribute, and the unlawful carrying of a firearm during the commission of a felony. The evidence against Pintado-Otero consists of the testimony of a Florida Marine Patrol Officer, and of a coeonspirator and government witness, Myra Labrador. Labrador testified that she was hired to accompany a man while he drove a motor home that was heavily loaded with marijuana. Man-and-woman combinations were needed to give the appearance of a “couple” vacationing in a motor home. Labrador testified that several other “couples” were hired to transport the marijuana in the same way. Labrador stated that she was placed in the back of a motor home with several others and taken to what was later identified as the stash site. Labrador identified appellant Pintado-Otero as one of the people in the motor home. When they arrived at the stash site, the “couples” were assigned different motor homes. The motor home in which Pintado-Otero was riding was followed from the stash site by the Florida Marine Patrol Officer who testified that Pintado-Otero’s vehicle would not stop until it approached a roadblock. The officer directed the passengers, Pintado-Otero and her daughter, to step out of the vehicle. While he was directing the driver to step out, the officer noticed Pintado-Otero place her hand on her purse. The officer instructed Pintado-Otero not to move while he removed from Pintado-Otero’s purse an automatic pistol, which was loaded and ready to fire.
Pintado-Otero argues that her mere presence in a vehicle transporting marijuana that was only accessible from the rear of the vehicle is insufficient to prove that she conspired to possess and possessed marijuana with the intent to distribute. Because these convictions must fall, her argument continues, so must the firearm conviction. We disagree.
The circumstances of Pintado-Otero’s presence in the vehicle transporting a substantial quantity of marijuana demonstrate that she was part of a conspiracy to possess and possessed marijuana. Pintado-Otero was among those people taken to the stash site for the purpose of transporting large quantities of marijuana out of Florida in motor homes. Her presence was essential to the success of the ruse — to give the appearance of a couple vacationing in a motor home. She was arrested in a motor home heavily loaded down with marijuana. The strong odor of marijuana was present in the cab of the motor home. The logical inference to be drawn from this evidence is that a conspiracy to possess the marijuana with the intent to distribute existed and that Pintado-Otero knowingly participated in it. In these particular circumstances, Pintado-Otero had no more or no less control over the progression and destination of the motor home and its contents than did the driver. Consequently, they shared at least constructive possession of the marijuana. See United States v. Maspero, 496 F.2d 1354, 1359 (5th Cir.1974). We hold that the evidence is more than sufficient for the jury to have inferred beyond a reasonable doubt that Pintado-Otero engaged in a conspiracy to possess and possessed marijuana with the intent to distribute.
Appellant Morra was convicted of conspiracy to import marijuana, conspiracy to possess marijuana with the intent to distribute, two counts of importation, and two counts of possession. John Thomas, who piloted the Christine, which was involved in the first importation, testified for the government that he was hired by appellant Morra to import the marijuana from the Caribbean to Florida. Morra told Thomas and a man named Bart Carver that the load was 20,000 pounds. Carver secured a vessel, the Christine, and prepared it for the first importation. When it was ready, the Christine sailed for the Caribbean. The vessel developed mechanical problems, and Thomas contacted Morra and defendant Ronnie Fripp, who sent a mechanic. On Morra’s instructions, Thomas sailed the Christine to the rendezvous with another ship where the Christine took on the 6,000 pounds of marijuana. When the Christine returned to Florida and arrived off the coast of Steinhatchee, Morra communicated with Thomas from a plane that circled above the vessel. Carver corroborated Thomas’ testimony, adding that Morra and Fripp were partners and that Morra assured him that there would be additional loads. Patrick Harrell testified that he was hired to “sit on the stash site.” Harrell met Morra, who Harrell stated was at the stash site when the marijuana was unloaded by the helicopters. Harrell testified that Morra, Fripp, and North were the masterminds of the scheme to import marijuana.
Morra concedes that the jury could have found him guilty beyond a reasonable doubt of conspiracy to import and importation of marijuana with respect to the first load. He argues that the evidence is insufficient, however, to support his conviction for possession of marijuana with the intent to distribute with respect to the first load. Morra’s argument is without merit. The evidence places Morra at the stash site and shows that he, Fripp, and North were partners or the masterminds in the criminal venture, exercising control over the marijuana. The logical inference is that he along with Fripp and North possessed the marijuana with the intent to distribute. Morra also argues that the evidence is insufficient to connect him to the second importation. He contends that the government proved two conspiracies to import and two conspiracies to possess marijuana with the intent to distribute. Because he was not connected with the second importation, Morra argues that his conviction on the second importation charge, the second possession charge, and the charge of a continuing conspiracy to possess marijuana must be reversed. We disagree. The government’s theory at trial was that there was one continuing conspiracy to import marijuana and one continuing conspiracy to possess marijuana with the intent to distribute. Morra and Fripp conspired to smuggle marijuana into the United States by ship and helicopter and to use Joe Reams’ property as the stash site. The testimony of the witnesses demonstrated that Morra and Fripp were partners and that they and North financed the importations and distributions. We believe that this evidence is sufficient for the jury to have inferred beyond a reasonable doubt that Morra engaged in the continuing conspiracy to possess marijuana as well as the second importation and possession of marijuana.
V. CONCLUSION
In conclusion, we hold that the appellants were not prejudiced by the improper jury contact, that the comments by the prosecu-trix during closing argument were not improper, that the government witness’ testimony was not prejudicial, that the trial court did not err in refusing to admit the collateral evidence, and that the evidence is sufficient to support the appellants’ guilt beyond a reasonable doubt. Consequently we AFFIRM the appellants’ convictions.
. Appellants Adams, Elliott, Morrell, Pintado-Otero, the Hockadays, and McMullen were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 841, 846; 18 U.S.C. § 2. Pintado-Otero was also convicted of unlawfully carrying a firearm during the commission of a felony. See 18 U.S.C. § 924(c). Appellant Morra was convicted of conspiracy to import marijuana and conspiracy to possess marijuana with the intent to distribute. He was also convicted on two counts of importation of marijuana, and on two counts of possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 952, 960, 963, 841, and 846; 18 U.S.C. § 2.
. Honorable William Stafford, United States Chief District Judge for the Northern District of Florida.
. The relevant portion of the judge’s discussion with Juror Adams follows:
JUROR ADAMS: Well, this lady came to my house last night, I don’t know what time it was. ... She told me that she was trying to get a job at Dixie Packers, that’s where I work in Madison. Somebody told her ... where I lived at and I worked at Dixie Packers, and told her to come and talk to me about was they hiring at this present time at Dixie Packers. Well, I told her that I didn’t know because I hadn’t been to work in about two weeks and I didn’t know was they hiring. I said I was going to Tallahassee every day on trial, on jury duty. ... And she come in and she said, oh, well — I asked her where was she from. She told me she was from Greenville and she had been working — she was a store manager at some store, and the man that owned the store was selling it, and that she was trying to find her another job, and she was asking me was they hiring. And she said that the man — after I told her about I was going to Tallahassee, you know, that I didn’t know about was they hiring at the time or not, then she said "Well, maybe you know the man that owns the store because he’s on trial up there.” I said, "No, I don’t think I do.” And she said, "Well, his name is Joe Reeves (sic)." I said, "No, I haven’t heard of that name.” And she said, "Well they call him Joe Ball." And she said, "He owned the store that I worked at, that I was store manager, and he’s selling the store.” And he told her that they had him on trial for finding marijuana on his land and that he didn’t know nothing about it cause he had so many acres of land that he didn’t know that the marijuana was on his land, but they was trying to send him off for it. I said, "Well, I don’t know him, no, because I’m not on that trial." And I got off the subject____
And then when she was going out the door, she said, “Well, you listen when you go back up there," she said, “You listen for his name and maybe you’ll know him and then maybe you could help him, then I won't have to find me another job because I could still keep my job, because he said he didn’t do it, he didn’t know nothing about it.” And she left.
THE COURT: Did you recognize the lady?
JUROR ADAMS: No, I didn’t know her at all. ...
THE COURT: Did she — did you mention the jury service first?
JUROR ADAMS: Yeah, I did.
THE COURT: Uh-huh. And then that’s when she — ?
JUROR ADAMS: That’s when she said, "Well, maybe you know him, the man that owns the store, maybe you know him because he’s on trial up there," and she said, "Joe Reeves.” I said, no, no, I don’t know him.” She said, "Joe Ball, they call him Joe Ball.” I said, "No, I don’t think — " I said, “No, I’m not on that trial.”
THE COURT: Have you said anything to any other jurors?
JUROR ADAMS: No....
Record XXXII at 2-7.
. Appellants argue that testimony of a juror is inherently suspect in these circumstances. The Supreme Court rejected a similar argument in Smith v. Phillips, supra, and noted that "surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_origin
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Sidney PERSSION and Caroline Perssion, Husband and Wife, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 13253.
United States Court of Appeals Seventh Circuit.
Dec. 13, 1961.
Donald S. Eisenberg, Madison, Wis., for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Ronald C. Meteiver, Lee A. Jackson, Meyer Rothwacks, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before SCHNACEENBERG, ENOCH and CASTLE, Circuit Judges.
ENOCH, Circuit Judge.
In this proceeding for review of a decision of the Tax Court of the United States, which determined a deficiency in income tax of $3,631.09 for the year 1953, there is only one disputed item.
Mr. and Mrs. Perssion filed a joint return in which they reported a capital gain of $16,000 on a sale of furniture, fixtures, etc., for $18,000. The Tax Court found only $2,000 allocable to this sale price.
The facts are briefly as follows: Mr. Perssion has been engaged in the business of owning and managing rental properties since the year 1924. In January, 1952, he purchased land and buildings at 1032-40 N. 12th Street, Milwaukee, Wisconsin, from Eva Pytel (including furniture, fixtures, etc., in the buildings) . He asserts that the total purchase price of $33,348.50 included the rooming and boarding house business which Mrs. Pytel had been operating at that location for about ten years. Mr. Perssion contends that the rooming and boarding house had acquired a very good reputation as a result of which the County of Milwaukee Welfare Department often sent indigent persons for temporary lodging at Mrs. Pytel’s. Mr. Perssion’s books reflect the following allocation at the time of the purchase:
Furniture and fixtures $ 2,000.00
Land 6,000.00
Buildings 25,348.50
Total $33,348.50
For the first six months, Mr. Perssion rented the premises to Mrs. Pytel at a monthly rental not disclosed to the Tax Court. In July, 1952, he made an oral agreement with Mr. and Mrs. George Lawrence who continued to operate the rooming and boarding house business. The Lawrences paid Mr. Perssion $800 per month, which he reported as rent in his income tax return for 1952, and they retained all income in excess of that amount. They had an option to lease the premises after a six-month trial period. They took up this option. Mr. Perssion describes the arrangement as one whereby the Lawrences bought the rooming house business, fixtures and furnishings for $18,000 to be paid to him at the rate of $500 per month, with an additional monthly rental of $300. There was an option to renew for an additional three-year period. The agreement was to be put in writing, but the parties did not reduce it to writing until a much later time. From January 1, 1953, through October, 1953, the Lawrences paid Mr. Perssion $800 per month.
Meanwhile in July, 1952, Mrs. Pytel, the original owner and operator of the property in question, rented an adjacent apartment building from Mr. Perssion who subsequently sold that building to Mrs. Pytel, and she began to operate a rooming and boarding house there in competition with the Lawrences. When the Lawrences’ business declined in the fall of 1953, Mr. Perssion reduced their monthly payments to $500, of which he allocated $300 to rent and $200 to the unpaid purchase price of the fixtures and furnishings. At the end of 1954, the monthly payments were reduced to $400, of which Mr. Perssion allocated $300 to rent and $100 to the unpaid balance. Mrs. Lawrence testified that she had thought the entire amount was monthly rental and that she did not understand that a part of the monthly payments were allocated to a purchase price until sometime in 1954 when she heard Mr. Perssion say something to that effect to her husband. Because of illness, Mr. Lawrence was unavailable as a witness in the Tax Court. He passed away after the trial.
On December 31, 1956, a written lease was executed covering the property here involved (and another parcel) for a term of 26 months beginning January 1, 1957, at a monthly rental of $300, with an option to renew for a four-year period at a monthly rental of $400.
Mr. Perssion’s books showed an account entitled “Mortgages Rec — Geo. Lawrence, 1032 N. 12th Street” in which the monthly payments allocated to the sale of the fixtures and furnishings were posted from 1953 through September 30, 1959. There was no evidence, however, that the Lawrences ever executed a mortgage to Mr. Perssion. The remainder of the monthly payments was recorded as rent during 1953 through 1955.
In connection with the lease executed December 31, 1956, the Lawrences also executed a note for $7,800, the amount of the unpaid balance of the $18,000 purchase price, which was to be paid in monthly installments of $200, beginning December 31, 1956. The note form has a space for insertion of interest, but the space is blank. Provision is made for interest after the due date, and there is a provision giving Mr. Perssion an option to cancel the lease in the event of default on the note.
In the return for 1953, the Perssions reported:
Gain on Sale of Furniture and Fixtures—
1030-40 N. 12th St. Sold January 2,1953, for $18,000.00
Purchased January 2, 1952, for 2,000.00
Net long-term capital gain on sale Percentage of gain on sale 88.89% $16,000.00
Amount received in 1953 $ 5,400.00
Percentage of gain 88.89%
Gain realized in 1953 4,799.52
Gain recognizable for 1953 (50%) 2,399.76
The Commissioner of Internal Revenue determined that only $2,000, the value of the furniture and fixtures on Mr. Perssion’s records, was allocable to the sales price and that the remaining $16,000 was allocable to proceeds from the lease; that $4,800 of the $5,400 received from the Lawrences in 1953, and allocated, by Mr. Perssion to payment on the fixtures and furniture, in fact represented rent covering the real estate which the Lawrences used in their operations; and that $600 represented proceeds from the sale of fixtures and furniture, as follows;
Sales price of furniture and fixtures $2,000
Cost of furniture and fixtures $2,000 Less: Reserve for depreciation 400 1,600
Net profit in installment basis $ 400
Gross profit ratio 20%
Gross proceeds of contract received in 1953 5,400
Less: Amount of gross rent income 4,800
Gross proceeds from the sale of furniture and fixtures $ 600
Long term capital gain realized in 1953 $ 120
Amount of long-term capital gain recognizable for 1953 (50%) $ 60
The Tax Court found that the lease-rent-sale transaction was designed to disguise rent from real estate as long term gain from a sale. The Tax Court properly considered the substance of the transaction as distinguished from its form in determining the nature of the transaction for tax purposes. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935); Ingle Coal Corp. v. C. I. R., 7 Cir., 1949, 174 F.2d 569, 571.
Although it is here contended on behalf of Mr. Perssion that an element of good will in a going concern was included in the sale of the furniture and fixtures, there was no allocation of the original purchase price to good will. Mrs. Pytel continued to operate the premises for about six months and then shortly thereafter renewed operation at a nearby location (which she purchased from Mr. Perssion) in competition with the Lawrences. The Lawrences acquired nothing in the nature of good will, such as a trade name, a right to sole operation in a particular area, or a staff with specialized knowledge. Grace Bros. v. C. I. R., 9 Cir., 1949, 173 F.2d 170, 176.
Mr. Perssion testified in the Tax Court that a fair monthly rental for this real estate in 1952 and subsequent years was $300. The Tax Court, however, also considered the fact that the Lawrences had paid a monthly rental of $800 in 1952.
It is the function of the Tax Court to weigh the evidence and to draw inferences therefrom. Wisconsin Memorial Park Co. v. C. I. R., 7 Cir., 1958, 255 F.2d 751. We cannot state from our study of this record that the Tax Court’s findings of fact in this case are clearly erroneous. The decision of the Tax Court must be affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. William M. CARROLL, Defendant-Appellant.
No. 88-2260.
United States Court of Appeals, Sixth Circuit.
Argued July 31, 1989.
Decided Jan. 9, 1990.
David Debold, argued, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Jill L. Price, argued, Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.
Before KRUPANSKY and RYAN, Circuit Judges, and WILHOIT, District Judge.
The Honorable Henry R. Wilhoit, Jr., United States District Judge for the Eastern District of Kentucky, sitting by designation.
RYAN, Circuit Judge.
This sentence guidelines appeal presents a meritorious assignment of error.
Because we conclude that the sentencing court erred as a matter of law in selecting the numerical value corresponding to the defendant’s “role” in the offense in this case, and as a result necessarily came to a mistaken mathematical conclusion about the appropriate sentence guidelines range, we vacate the sentence and remand the case for resentencing.
I.
Before turning to the four meritless and one meritorious issues in this appeal, we should like to say a word, in dicta to be sure, about the ever increasing volume of sentence guidelines appeals being filed in this circuit, and presumably in others.
This is one in an ever increasing number of such appeals in which the principal thrust of the appeal is to attempt to persuade this court to second guess the sentencing judge’s findings about the nature of the defendant’s role in the offense, or his attitude about his guilt, or his criminal justice history; and sometimes, as in this case, all three.
This appeal is unusual in that it presents a meritorious assignment of error. In most of these appeals the sentenced offender is the appellant and his sole appellate purpose is obvious: to obtain a more lenient sentence than was imposed by the district court. When the government is the appellant, as it is with increasing frequency, its purpose, ordinarily, is to obtain a more severe sentence.
The usual request in these appeals is that we substitute our own findings of fact for those of the sentencing court and then recompute the “correct” sentence guideline range by introducing into the convoluted arithmetical sentencing guidelines formula different numerical values for the defendant’s role in the offense, his attitude, and his criminal history than the sentencing court, and usually the probation department, thought to be appropriate. To characterize this use of the resources of the United States Court of Appeals as imprudent is a very considerable understatement.
As the burgeoning volume of these sentence guidelines appeals begins to bloat the dockets of all the courts of appeals, we are necessarily spending more and more time doing nothing more than responding to appellants’ pleas that we disagree with the factual determinations of sentencing judges and correct their mathematical computations. In the vast majority of these cases, although not this particular one, after careful and exhaustive examination of the sentencing court’s findings of facts and its arithmetical computations, our appellate scrutiny results in a conclusion, even where some minor mathematical mistake is identified, that the correct sentence range is exactly as determined by the sentencing court. Part of the price that is paid for this kind of appellate drill is the unwarranted consumption of considerable time and energy that should be devoted to study, research, decision making, and opinion writing in an accumulating backlog of cases involving hundreds of jurisprudentially significant questions of state, federal, and constitutional law — functions for which the United States court of appeals was created.
It is not too late for Congress to reconsider whether the time and resources the courts of appeals are devoting to reviewing these sentence guideline cases, particularly in view of the essentially clerical nature of the current review function, can be better spent without sacrificing a sentenced defendant’s entitlement to appropriate appellate review of the sentence imposed.
Meanwhile, we shall continue to undertake, as we have in this case, a detailed analysis of the correct application of the guidelines to the facts of individual cases in the hope that doing so will contribute to an early accumulation of a body of appellate precedent on the subject, looking to the day when most district court findings of fact and arithmetical computations in sentence guideline cases can be double checked without the full blown court of appeals briefing, oral argument, and opinion writing that should be reserved for jurisprudentially weightier matters.
II.
Appellant William M. Carroll attempted to escape from a federal correctional institute, pleaded guilty to doing so, was convicted and sentenced, and now appeals the district court’s interpretation of the sentencing guidelines and the measure of proof by which the court required the government to prove the facts relied upon to compute the correct sentencing guidelines range.
Appellant argues that the district court erred in the following matters:
—Not requiring the government to prove by clear and convincing evidence the facts upon which it urged the district court to rely in determining the correct sentencing guidelines’ values.
—Increasing appellant’s base offense level by two levels for being an “organizer or leader.”
—Increasing appellant’s criminal history score by two points for committing an offense while under a criminal justice sentence.
—Increasing appellant’s criminal history by two points for committing an offense within two years after release from custody.
—Denying appellant a two level reduction for acceptance of responsibility.
We agree with appellant that, as a matter of law, his base offense level could not be increased by two points on the theory that he was an organizer or leader under the “role in the offense” guideline. The remaining assignments of error are without merit, but because of the “role in the offense” miscalculation, the sentence is vacated and the matter is remanded to the district court for resentencing.
III.
Carroll was serving a fifteen-year sentence for manufacturing counterfeit currency when, in February 1988, he asked another inmate whether the inmate knew anyone on the outside who could help Carroll escape from the Federal Correctional Institute in Milan, Michigan. The inmate promptly alerted prison authorities who instructed the inmate to put Carroll in touch with an undercover FBI agent outside the prison who would pose as a helicopter pilot for hire.
Carroll telephoned the agent six times. He also wrote several letters in which he detailed his escape plans in “invisible ink” (lemon juice). Carroll planned to pay the agent and his helpers with $1,000,000 in counterfeit currency that he would then launder by purchasing cocaine from “a couple of Venezuelan brothers.” Carroll offered the agent an extra $250,000 if he could recruit one more assistant and indicated a willingness to pay an additional one million counterfeit dollars for the life of the “bastard who got me this 15 years.” In a later letter to the agent, Carroll identified that person, but told the agent to wait about six months so that the two could review details and defuse suspicion.
Carroll admitted that at the time scheduled for the escape, he was waiting for the helicopter in the designated place, was wearing predetermined clothing, and was signaling the pilot where to land.
Carroll was charged in a complaint with attempted escape, 18 U.S.C. § 751, and solicitation to commit murder, 18 U.S.C. § 13, relying, pursuant to the Assimilative Crimes Act, on Mich.Comp.Laws § 750.157b (1989). He pleaded guilty and was scheduled for sentencing on December 14, 1988. As required by local court rule, appellant filed written objections to the calculation of his sentencing guidelines and renewed those objections orally at the time of his sentence. He makes the same arguments on appeal that he made below.
At sentencing, Carroll did not dispute the initial determination that Guideline § 2Pl.l(a) assigns a base level of thirteen to his offense; nor did he seriously dispute the court’s finding that he initiated and planned the escape attempt. Rather, Carroll objected to the government’s argument that he deserved a two point base level increase, pursuant to § 3Bl.l(c), due to his “aggravating role” in the escape attempt. Carroll maintained that because he was the only criminally responsible person alleged to have been involved in the offense, he could not rationally be treated as an “organizer or manager” within the language and intent of the applicable guideline — regardless of whether he planned the escape — because the escape involved no other “participants” as defined in the guidelines. Carroll asserted that in this ease he only organized himself and the guideline does not permit enhancement in such a situation.
Carroll also objected to the government’s request to add two points to his criminal history score for having committed an offense while under a criminal justice sentence, and one point for commission of an offense within two years after release from custody. He argued that because a defendant cannot commit the offense of escape unless he is under a criminal justice sentence, the two point addition to the criminal history score mandated by § 4Al.l(d) is inappropriate in escape cases. Carroll further argued that the commission of his offense prior to his release from custody renders § 4Al.l(e) inapplicable.
Finally, Carroll argued that he was entitled to the two level “acceptance of responsibility” reduction.
The sentencing court accepted the government’s position on every guideline issue. The court began the sentencing computation by applying a base offense level of thirteen. U.S.S.G. § 2P1.1(a)(1). In apparent reliance on the agent’s affidavit that Carroll initiated the attempted escape, the district court increased the base by two levels due to Carroll’s aggravating role in the offense, pursuant to § 3B.l.(c), for a total offense level of fifteen. The court determined Carroll’s criminal history category to be Five, based on twelve criminal history points, and gave Carroll no credit, pursuant to § 3E1.1, for “acceptance of responsibility.” As a result of the various enhancements, the guidelines indicated that Carroll’s sentence should range from thirty-seven to forty-six months. The court imposed a sentence of forty months to run consecutive to Carroll’s previous counterfeiting sentence, followed by three years’ supervised release.
IV.
A.
Appellate review of sentences imposed under the guidelines is set forth at 18 U.S.C. § 3742 (1989), which provides in pertinent part:
(e) Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence—
(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines;
The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.
(f) Decision and disposition. — If the court of appeals determines that the sentence—
(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate....
Under the “due deference” standard of 18 U.S.C. § 3742(e), the appellate review standard varies depending on whether an issue is factual, legal, or mixed. United States v. Ortiz, 878 F.2d 125 (3d Cir. 1989).
B.
Carroll first claims that the district court erred in not requiring the government to prove by clear and convincing evidence those facts upon which the court should rely in determining the sentence pursuant to the guidelines. We disagree.
As the Fourth Circuit recently noted in United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.), cert. denied, - U.S. -, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989), other courts examining the standard of proof required by the guidelines “have generally agreed that a preponderance standard is the proper measure.” See, e.g., United States v. Lovell, 715 F.Supp. 854 (W.D. Tenn.1989); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988); United States v. Silverman, 692 F.Supp. 788, 791 (S.D.Ohio 1988). Moreover, although McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986), was a pre-guidelines ease, McMillan’s due process analysis applies with equal force to federal courts. See United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987); United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir.1988). In McMillan, the Supreme Court rejected a contention that a sentencing court must apply a clear and convincing standard to factual findings relevant to sentencing determinations. The McMillan Court concluded that Pennsylvania’s statutory requirement of proof by a preponderance satisfied due process, noting that “[sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all.” 477 U.S. at 91, 106 S.Ct. at 2419.
While the precise question whether the Constitution mandates proof of facts by at least a preponderance standard was not before the McMillan Court and is not before us, we certainly think the trial court’s application of that standard here suffices. We discern no reason to accept appellant’s claim that the advent of a new sentencing system requires application of a standard higher than that accepted in McMillan.
C.
We turn next to Carroll’s claim that the trial court erred by adding two points to the base level for his offense pursuant to § 3Bl.l(c). Carroll argues that guideline § 3B1.1 applies to organizers or leaders involved in “organizational crime” and that enhancement was improper in this case because he was the sole defendant alleged to have participated in this offense.
It is necessary for an adequate understanding of Carroll’s argument and a resolution of the issue to burden our opinion by setting forth, in full, the relevant guidelines and related commentary:
PART B — ROLE IN THE OFFENSE
Introductory Commentary
The Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. When an offense is committed by more than one participant, § 3B.1 or 3B.2 (or neither) may apply. Section 3B1.3 may apply to offenses committed by any number of participants.
§ 3B1.1 Aggravating Role
Based on the defendant’s role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
Commentary
Application Notes:
1. A “participant” is a person who is criminally responsible for the commission of the offense, but need not have been convicted.
3. ... This adjustment does not apply to a defendant who merely suggests committing the offense.
§ 3B1.4 In any other case, no adjustment is made for role in the offense.
Commentary
Many offenses are committed by a sin-gie individual or by individuals of roughly equal culpability so that none 0† them will receive an adjustment under this Part.
The introductory commentary to the “Role in the Offense” enhancement provision states that § 3B1.1 may apply “when an offense is committed by more than one participant.” The commentary to the same section defines “participant” as any “person who is criminally responsible for commission of the offense” with which the defendant has been charged. Because Carroll only “organized” law enforcement authorities — persons who could not have been “criminally responsible” — it is undisputed that Carroll’s crime involved only one offender and, therefore, no criminal organization or enterprise.
The government maintains that enhancement was appropriate because the commentary referring to, and apparently requiring, “participants” is merely equivalent to legislative history that should be ignored when the plain language of the guideline is clear. See § IB 1.7, Comment.; McBarron v. S & T Industries, Inc., 771 F.2d 94, 97 (6th Cir. 1985). The government argues that although
the word “participants” is explicitly used in the two previous subsections, ... in the subsection in question, the term “any criminal activity other than described [in the two previous sections]” is substituted. Thus, no magic number of “participants” need be proven, by the plain language of the guideline. The Introductory Commentary does not state that the Aggravating Role adjustments (§ 3B1.1) apply only to offenses committed by more than one participant. It merely provides a general rule — an overview or “Introduction” to the entire chapter; it is not tailored to the specific and peculiar situation presented in this ease where the defendant unwittingly attempts to organize the non-culpable.
In further support of its reading of the guideline, the government asserts the following:
The purposes behind an “organizer or leader” adjustment include punishing more severely those who are more likely to profit and those who, by virtue of their willingness to lead, “present a greater danger to the public and/or are more likely to recidivate.” § 3B1.1, Commentary (Background). These purposes are just as applicable when the defendant unwittingly tries to organize and lead non-criminals. In short, this defendant should be subject to the same sentencing range as a defendant who, by luck, picks a fellow inmate who is willing to break the law and who hires a real pilot on the outside who will jump at the chance to make two million dollars in counterfeit currency that can be laundered through drug deals.
Our review of this guidelines construction issue is plenary. United States v. Ofchinick, 877 F.2d 251, 256 (3d Cir. 1989); 18 U.S.C. § 3742(f)(1).
We disagree with both the government’s reading of the guideline and its characterization of Carroll as a leader. With respect to the government’s argument that the “participants” requirement should be treated as superfluous legislative history creating an ambiguity in an otherwise clear statute, we note that, unlike traditional legislative history which is often written by legislative staff and not subject to congressional vote, the commentary here accompanies and is printed between the various guideline provisions in the Guidelines Manual, an official publication of the United States Sentencing Commission. Furthermore, the government’s authority for treating commentary as legislative history is actually found in the commentary to another guideline whose language indicates that the commentary has greater significance than the government recognizes. That introductory guideline and its commentary states:
§ 1B1.7 Significance of Commentary
The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. § 3742.
Commentary
Portions of this document not labeled as guidelines or commentary also express the policy of the Commission or provide guidance as to the interpretation and application of the guidelines. These are to be construed as commentary and thus have the force of policy statements.
In stating that failure to follow certain commentary “could constitute an incorrect application of the guidelines, ” the Commission simply means that in seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of the drafter.
It is disingenuous for the government to cite the commentary as support for its argument that we should ignore the commentary.
While we recognize and accept the government’s argument that one of the purposes of this enhancement section is to punish more severely those who, like Carroll, are “willing to lead,” the background to § 3B1.1, from which the government also selectively quotes, indicates that leadership of culpable individuals is necessary. The background explains that “[tjhis section provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense.” U.S.S.G. § 3B1.1, Comment, (backg’d.) (emphasis added). The government ignores the underscored conjunction and, therefore, the first half of the sentence. The government also fails to address those portions of the commentary to § 3B1.1 indicating the following:
This adjustment does not apply to a defendant who merely suggests committing the offense.
In relatively small'criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § SBl.l(c).
While Carroll may have suggested a prison escape, the government, unbeknownst to Carroll, had actually taken over and was actually organizing the operation. Just as the government cannot claim that a defendant conspired with a government agent because “proof of an agreement between a defendant and a government agent or informer will not support a conspiracy,” United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), the government cannot claim that Carroll was leading or organizing government agents. When read in context, the language of the guideline indicates that its drafters did not seek to provide “supervisory” enhancement in a case such as this. Rather, like conspiracy, this guideline requires that a defendant engage in criminal activity with at least one other criminally culpable person. To accept the government’s argument that § 3Bl.l(c) should be read exclusive of the commentary would permit enhancement where a single offender engaged in what could be considered an “otherwise extensive” criminal activity by the mere fact that the activity, involved use of the services of several innocent people. We hold that enhancement pursuant to § 3B1.1 requires the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed.
D.
Appellant next challenges the increase of his criminal history score by two points for the “commission of the instant offense while under any criminal justice sentence,” § 4Al.l(d), and by one point for the “commission of the instant offense less than two years after the release from imprisonment,” § 4Al.l.(e). Those sections provide in pertinent part:
CHAPTER FOUR — CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD PART A — CRIMINAL HISTORY
§ 4A1.1 Criminal History Category
The total points from items (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.
(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month:
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not included in (a) or (b), up to a total of 4 points for this item.
(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
(e) Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b). If 2 points are added for item (d), add only 1 point- for this item.
Carroll maintains that because he was charged with escape, the base offense level implicitly included punishment for an offense committed while under sentence since, by definition, one cannot escape unless one is under a criminal justice sentence. Carroll argues that the additional two point increase is a double punishment.
In calculating Carroll’s criminal history points, the probation department report relied on the language of the enhancing guideline and on the answer to Question 22 of the Sentencing Commission’s “Questions Most Frequently Asked About The Sentencing Guidelines,” issued on May 5, 1988. In that publication, the Commission stated that in drafting the guidelines the Commission intended that courts would impose two criminal history points for § 4Al.l(d) and one point for § 4Al.l(e) when sentencing escape offenders. The trial court adopted the probation department’s calculation of the criminal history score, noting reliance on the Sentencing Commission’s commentary.
In agreement with the Third and Tenth Circuits, we note that the language of Guideline § 4A1.1 does not support a different result. See United States v. Ofchinick, 877 F.2d 251 (3d Cir.1989) (defendant convicted of escape from custody may receive criminal history enhancement under Guideline §§ 4Al.l(d) and (e) for escaping while under a sentence of imprisonment and while still in confinement, even though being in custody is an element of the offense); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989) (affirming use of Guideline § 4Al.l(d) to add two points to criminal history score of defendant convicted of escape). But see United States v. Clark, 711 F.Supp. 736 (S.D.N.Y.1989) (such use constitutes double counting); United States v. Bell, 716 F.Supp. 1207 (Minn.1989) (same holding).
The language of § 4Al.l(d) indicates that that provision applies to all offenses committed while imprisoned. The commentary to the guidelines often cautions against double counting in particular areas, but fails to indicate that adding three points here would violate that principle. Because the language of the guidelines fails to support his argument, Carroll claims that it was never the Commission’s intent to enhance the base offense level for escape. But as the sentencing court recognized, the Sentencing Commission’s answer to this specific question disproves Carroll’s argument that the Commission intended, through the assignment of a base level of thirteen, to account for the fact that the offense was committed while under a sentence. Moreover, “[t]he structure of the Sentencing Guidelines suggests that the criminal history category is to be determined without regard to the nature of the crime for which the defendant is currently being sentenced.” Goldbaum, 879 F.2d at 813, citing United States v. Reyes-Ruiz, 868 F.2d 698, 700 (5th Cir.1989).
The better inference is that the Commission chose not to propose an even higher base level for escape offenses because it anticipated that a separate upward adjustment in the criminal history category would produce a similar result. The Goldbaum court stated:
[I]n the absence of any contrary intent we must apply the clear language of the guideline and presume that in formulating the base level specified for the crime of escape in Guideline § 2P1.1, the Sentencing Commission had in mind that under Guidelines §§ 4Al.l(d) and (e), points would be added to the particular defendant’s criminal history category thereby enhancing the sentence.
Carroll also maintains that the court made an interpretation error by adding one point under guideline § 4Al.l(e), which provides that one or two points shall be added to the criminal history category “if the defendant committed the instant offense less than two years after release from imprisonment.” Carroll argues that this guideline is inapplicable to his situation because he was obviously not released before he committed the offense.
This claim was recently rejected by the Fourth and Tenth Circuits. See United States v. Ofchinick, 877 F.2d 251, 256-57 (3d Cir.1989); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989). The Ofchin-ick court indicated:
Unquestionably the language of the guideline supports [appellant’s] interpretation. However, application note 5 to guideline § 4A1.1 indicates that guideline § 4Al.l.(e) “applies if the defendant committed the instant offense while still in confinement on such a sentence.” Guideline § 1B1.7 provides that the commentary, which includes the application notes, may be used to “interpret the guideline or explain how it is to be applied.” Thus, there is no question but that the computation of [appellant's criminal history category was consistent with the intent of the Sentencing Commission.
Thus, while we recognize the inconsistency between the guideline and the note, we do not see how we cannot follow the note, as the Sentencing Commission issued both the guidelines and the commentary in its official Guidelines Manual. This is not the usual case in which we are asked to accept legislative history such as committee reports, or even testimony of a witness before a committee, to determine the intent of Congress as a whole.
(Footnote omitted.)
Like the Fourth Circuit, we recognize that the commentary accompanying the Sentencing Guidelines Manual is unusually probative of the Commission’s intent on this issue. We also recognize that a recent amendment to this section, which took effect on November 1, 1989, supports our interpretation by adding “or while in imprisonment or escape status on such a sentence” to the end of the first sentence of the guideline. “Inasmuch as the amendment to the guideline is intended to clarify the existing guideline, we may give it substantial weight in determining the meaning of the existing guideline.” Ofchinick, 877 F.2d at 257 n. 9. We affirm the sentencing court’s application of the guidelines to determine Carroll’s criminal history category.
E.
Finally, Carroll contests the district court’s refusal to grant him a two level offense reduction for his “acceptance of responsibility” as permitted by § 3E1.1 of the guidelines. Carroll maintains that he should have received the two level reduction because he waived indictment and pleaded guilty within two weeks of his initial appearance on the complaint. The district court disagreed, concluding that Carroll had not “expressed any remorse” and was only “trying to be [as] persuasive as possible ... to pay the minimum to what he did to himself.”
This circuit recently discussed the standard for reviewing a district court’s “acceptance of responsibility” determination in United States v. Wilson, 878 F.2d 921 (6th Cir.1989). Quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989), we explained:
Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court’s determination of that question, like its findings with respect to manager status, and minimal participant status, enjoys the protection of the “clearly erroneous” standard. Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the “clearly erroneous” standard will nearly always sustain the judgment of the district court in this area. Indeed, the guidelines specifically state that “[t]he sentencing judge is in a unique position to evaluate the defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.”
(Citations omitted.)
A guilty plea does not automatically entitle a defendant to the acceptance of responsibility reduction. See § 3El.l.(c). Although a guilty plea may provide some evidence of a defendant’s acceptance of responsibility, that acceptance remains questionable where, as here, the plea may have been induced by factors of overwhelming evidence of guilt and desire to avoid the risk of conviction on other charges, such as solicitation to murder. Carroll’s continued insistence that the inmate-informant had initially approached him further supports the court’s conclusion that Carroll had not accepted full responsibility for the offense.
Finally, the factors that § 3El.l’s commentary lists as appropriate to consider in deciding whether to apply the “acceptance of responsibility” reduction hardly apply to Carroll. Carroll did not voluntarily withdraw from or terminate his criminal conduct prior to his apprehension or in some other way timely manifest through his conduct an acceptance of responsibility. Carroll merely entered a guilty plea in the face of almost certain conviction. The district court was in a much better position to observe Carroll’s demeanor, and whether we agree with its ruling is not the issue. The real question is whether the district court’s finding of fact in the matter is clearly erroneous. Plainly, it is not.
V.
For the reasons given, appellant’s sentence is VACATED and the matter is REMANDED for resentencing.
. Both parties agree that the burden of persuading the court that an aggravating factor applies remains with the government. The parties do not address, so neither do we, whether the government should also be required to disprove application of mitigating factors or whether the burden of persuading the court that a point reduction applies should shift to the defendant seeking the reduction. See United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989) (shifting burden of persuasion); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988) (burden remains on government at all times).
. The government might have arrested Carroll after he had spoken only to the informant. Obviously the government’s evidence would not have been nearly as compelling, but the crime would have been the same. Instead, the government organized and orchestrated its own scheme, introducing Carroll to an agent who was able to obtain the incriminating evidence that led to Carroll’s guilty plea by appearing to participate in the planned escape.
. Question 22 provides in pertinent part:
22. In a case involving escape from prison (or work release) as the instant offense, does the defendant receive two criminal history points for § 4Al.l(d) and one more for § 4Al.l(e>?
Yes, providing the prior sentence of imprisonment (or work release from confinement) is at least 60 days. The defendant receives two points pursuant to § 4Al.l(d) for committing the instant offense while under any criminal justice sentence. Another point is received for committing the offense less than two years after release from imprisonment on a sentence of at least 60 days (§ 4A 1.1(e)). As stated in Application Note #5, § 4Al.l(e) "also applies if the defendant committed the instant offense while still in confinement on such a sentence.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MARCHANT v. MEAD-MORRISON MFG. CO.
(Circuit Court of Appeals, Second Circuit.
March 19, 1926.)
No. 266.
Removal of causes <&=»IG7(8) — Where motion to remand to state court Is granted, denial of motion for appointment of arbitrator is merely denial for lack of jurisdiction, and left merits of motion for state court.
Granting motion to remand proceeding to state court, being a decision against federal court’s jurisdiction, proper procedure was to send matter back to state court at once, and court’s denial of motion to dismiss petition for appointment of arbitrator could mean .no more than denial because of lack of jurisdiction, leaving motion for decision by state court on its merits.
Appeal from the District Court of the United States for the Southern District of New York.
In the matter of the application of Russell B. Marchant, as trustee in bankruptcy, for an order appointing an arbitrator, opposed by the Mead-Morrison Manufacturing Company. From so much of an order remanding proceeding to the Supreme Court of New York as denied its motion for an order dismissing bankruptcy trustee’s motion for an arbitrator and directing that arbitration proceed (7 F.[2d] 511)’, said Mead-Morrison Manufacturing Company appeals.
Affirmed.
Marchant, as trustee in bankruptcy, deemed himself successor to the rights of the corporation of which he is trustee, which corporation had a written contract with the Mead Company. This contract contained a clause providing, in the event of disputes, for the appointment of an arbitrator by each contracting party, and of a third arbitrator by the other two.
Marchant declared to Mead Company that a dispute existed, and named an arbitrator; Mead Company protested that no arbitrable dispute did exist, hut "also named an arbitrator. The persons named could not or did not agree on the third, whereupon Mar-chant by petition applied to the Supreme Court of New York for an order naming the third arbitrator; this in accordance with the Arbitration Law of New York. Laws 1920, e. 275 (Consol. Laws, e. 72).
Marchant and the corporation for which he is trustee are of New York; Mead Company is a corporation of Massachusetts; therefore Mead Company removed to the court below the said application for arbitrator, on the ground of diversity of citizenship. Removal being complete, Marchant moved to remand, and Mead Company moved “for an order dismissing the application of Marchant for an order appointing an arbitrator,” etc.
The motions were heard together, and resulted in an order consisting of several “ordering parts,” of which two appear in the following sequence:' (1) The proceeding “is remanded to the Supreme Court of New York”; and (2) the motion of Mead Company “for an order dismissing the application (of Marchant) for an arbitrator and directing that arbitration • proceed herein be and the same is denied.”
Thereupon Mead Company appealed to this court “from each and every part of said order of denial.”
Edward F. MeClennen and Arthur P. French, both of Boston, Mass., and Charles E. McMahon, of New York City, for appellant.
Charles M. Travis, of New York City (Leland B. Garretson, of New York City, of counsel), for appellee.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
HOUGH, Circuit Judge
(after stating the facts as above). The remanding order is admittedly not subject to review in this court. Judicial Code, § 28 (Comp. St. § 1010). It must follow that the case has gone back to the state court, and how it or any part of it can also be or remain in the courts of the United States is, to say the least, difficult to understand.
Argument is that, while the ease was in the court below, that court'improved the opportunity to deny Mead Company’s application to dismiss Maxchant’s petition; so that the cause went back to the state court with a motion denied, which Mead Company regards as vital to its interests. Wherefore this appeal is said to bring up only the propriety of that denial.
The procedural impossibilities resulting from the action of the court below, as construed by appellant, are too obvious to need explanation. The result is that a court which held itself to be without power — i. e., jurisdiction to entertain the cause at all — is said to have cotemporaneously decided a leading, if not controlling, element of the cause.
The matter is extremely technical, yet a technicality can resolve it. The motion to remand raised a question of jurisdiction; decision was against jurisdiction; therefore proper practice was to send the matter at once, and as it was, to the place where jurisdiction existed. The second, part of the order under review was improper, if understood as appellant wants it understood.
But it can be taken, and we understand it, to mean no more than that Mead Company’s motion was necessarily denied for the same reason that the cause was remanded, viz. lack of jurisdiction. So understood the order complained of is no more than one declining any jurisdiction in the premises. It is not well drawn, but is not open to the impossibilist construction necessarily assumed by appellant. Mead Company’s motion stands for decision in the state court on its merits.
In writing the foregoing we have assumed that the order in question is final, in respect of the second part thereof. That assumption is made for argument’s sake; it is not a finding.
Order affirmed; no costs.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
FIRST NATIONAL BANK AND TRUST COMPANY OF VINITA, OKLAHOMA, a corporation, Additional Defendant on Cross-Complaint-Appellant, v. ATLAS CREDIT CORPORATION, a corporation, Defendant and Cross-Petitioner-Appellee. James B. WEEDIN and Meredith M. Weedin, Defendants-Appellants, v. ATLAS CREDIT CORPORATION, a corporation, Defendant and Cross-Petitioner-Appellee.
Nos. 47-68, 48-68.
United States Court of Appeals Tenth Circuit.
Nov. 18, 1969.
Rehearing Denied in No. 48-68 Dec. 30, 1969.
James R. Ryan, Tulsa, Okl. (George P. Pitcher, Vinita, Okl., with him on the brief) for appellant First National Bank & Trust Co. of Vinita, Okl.
Fred H. Miller, Norman, Okl., for ap-pellee Atlas Credit Corp.
Alvin L. Floyd, Tulsa, Okl., for appellant James B. Weedin.
Hicks Epton, Wewoka, Okl., for ap-pellee Atlas Credit Corp.
Before PHILLIPS, LEWIS and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
This appeal arose out of an action to foreclose a real estate mortgage upon ranch property in Craig County, Oklahoma. The mortgage was successfully foreclosed and the real estate mortgagee is no longer interested in the case.
Atlas Credit Corporation and its subsidiary, Atlas Subsidiaries of Missouri, Inc., were originally joined as defendants in the mortgage foreclosure action because they held junior liens on the real estate involved and claimed a security interest in the livestock grazed upon the real property in question. Atlas Credit Corporation has been assigned the interest of its subsidiary and will be referred xo as Atlas.
Atlas filed an answer counterclaiming foreclosure of its junior lien on the real estate and seeking recovery of the livestock given as additional security for money loaned by them to defendant debtors. Atlas joined the First National Bank and Trust Company of Vinita, Oklahoma (Bank) as an additional defendant who claimed a prior security interest in the livestock pledged to them. The Bank is the other party involved in the main issue of this appeal.
The issue between Atlas and the Bank relates to the priority of security interests which cover the same livestock and equipment.
Defendants Weedin, a dentist and his wife, officers and principal stockholders of the W. E. Ranch, Inc., who negotiated the loans here in question, appeal the denial of their discharge in bankruptcy. This issue relates to the trial court’s finding that certain representations to Atlas’ assignor were fraudulent and therefore the debt to Atlas was non-dis-chargeable in bankruptcy.
The court found in favor of Atlas on the priority question, and it is agreed that this question is based primarily on the interpretation of Title 12A, § 9-312 (5) Okl.Stat.Ann. (1961) (Uniform Commercial Code, § 9-312(5)).
The law of the state where the collateral is located at the time of the transaction is the governing law without regard to possible contacts in other jurisdictions. Uniform Commercial Code, § 9-102, Comment 3, (12A Okl.Stat.Ann. § 9-102).
The record discloses that the Bank loaned $38,422.34 to the debtors on October 22, 1963, and properly filed a financing statement covering specifically described livestock and “all other cattle now owned or later acquired.” Although there was evidence indicating otherwise, the trial court found and for the purpose of this appeal the parties agree that a security agreement was not executed nor received by the Bank at this time, but, on April 30, 1965, a security agreement was made and executed by the debtors. It is a note given by the debtors at this time upon which the Bank’s judgment is based.
On February 4, 1964, Atlas loaned the debtors $34,000.00 for which debtors executed a financing statement and a security agreement covering the debtor’s livestock and equipment then owned or thereafter acquired. The financing statement was filed February 11, 1964. The Bank had notice of this filing within a week thereafter.
The Bank records disclose a course of business transactions between the debtors and the Bank after October 22, 1963, wherein money in excess of the original $38,422.34 loaned was advanced and repaid until the total was calculated on April 30, 1965, and set forth in the security agreement then executed in the amount of $27,301.00.
The appellate courts of Oklahoma have not considered the issue here presented under the code so far as we can ascertain.
Because the Uniform Commercial Code is here involved and believing it is a step in the right direction away from the confused and archaic past of the law of commerce, we seek a uniform literal construction of the act.
We approach the issue pursuant to the reasoning of such cases as Shircliff v. Elliott, 384 F.2d 947 (6th Cir. 1967): “In reaching a result, this Court must apply the statute in a manner consonant with the literal meaning of its terms and in a manner to best effectuate its overriding purpose.” swpra at 950.
The trial court in the case at bar refused to accept the language of the code which directs that priorities between conflicting security interests in the same collateral shall be determined in the order of filing a financing statement if both are perfected by filing. Uniform Commercial Code, § 9-312(5). Perfection occurs when the security interest later attaches at the time the transaction takes place and the security agreement is executed. Thus the filing date, which determines priority, may precede the perfection date. See 2 Gilmore, Security Interests in Personal Property, § 34.4 at 909.
12A Okl.Stat.Ann. § 9-312(5) (Uniform Commercial Code § 9-312(5)) reads as follows:
“(5) In all cases not governed by other rules stated in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interests in the same collateral shall be determined as follows:
“(a) in the order of filing if both are perfected by filing, regardless of which security interest attached first under Section 9-201(1) and whether it attached before or after filing;
“(b) in the order of perfection unless both are perfected by filing, regardless of which security interest attached first under Section 9-204(1) and, in the case of a filed security interest, whether it attached before or after filing; * * (Emphasis added).
The Oklahoma Code Comment following this section reads as follows:
“(5) This is a change of Oklahoma law. It creates a ‘Race of Diligence’.
Priority between conflicting security interests are:
“(a) In the order of filing if both are perfected by filing.
“(b) In the order of perfection unless both are perfected by filing. Example 2 in the Uniform Commercial Code Comment covers this situation. If one is perfected by taking possession the time of taking possession is the time used as to that one in determining which has priority.”
The Bank argues that the clear mandate of section 9-312(5) of the U.C.C., as explained in Example 1 in Comment 4 of the official comments, operates to give priority to the Bank. Example 1 reads as follows:
“Example 1. A files against X (debt- or) on February 1. B files against X on March 1. B makes a non-purchase money advance against certain collateral on April 1. A makes an advance against the same collateral on May 1. A has priority even though B’s advance was made earlier and was perfected when made. It makes no difference whether or not A knew of B’s interest when he made his advance.
“The problem stated in the example is peculiar to a notice filing system under which filing may be made before the security interest attaches (See Section 9-402). The Uniform Trust Receipts Act, which first introduced such a filing system, contained no hint of a solution and case law under it has been unpredictable. This Article follows several of the accounts receivable statutes in determining priority by order of filing. The justification for the rule lies in the necessity of protecting the filing system — that is, of allowing the secured party who has first filed to make subsequent advances without each time having, as a condition of protection, to check for filings later than his. * * * ”
Before going further into an analysis of the effect of the first-to-file priority rule of U.C.C. § 9-312(5) (a) on this case, we consider whether the facts allow analyzing it pursuant to the teaching of Example 1 to Comment 4 of the official comments to the U.C.C., supra (adopted in Oklahoma).
Atlas argues that this case does not fit within the single advance situation illustrated by Example 1 to Comment 4 because more than one loan was in fact made by the Bank.
Further, they argue that this was not a situation where future advances were contemplated in the initial security agreement as illustrated by Examples 4 and 5 to Comment 4 because the trial court found there was no security agreement executed at that time. Atlas urges upon this court that the situation presented is nothing more than a series of separate secured loans with no future advance clause providing that future advances of the Bank were to be secured by the collateral filed against on October 22, 1963.
Atlas then argues that, in accordance with this reasoning, it. is entitled to priority in line with the decision in Coin-O-Matic Service Co. v. Rhode Island Hospital Trust Co., 3 U.C.C.Rep. 1112 (R.I. Super.Ct.1966). In this case one Doroff purchased a car on credit and gave a security interest in it which was perfected by filing. The chattel paper on this transaction was assigned to the defendant. The security agreement contained no provision for future advances. A year later, Doroff became indebted to the plaintiff and gave it a security interest in the car which was also perfected by filing. Shortly thereafter, the defendant loaned Doroff $1,000 part of which was used to pay off the old debt and that security interest was cancelled.
The question, when Doroff went bankrupt, was whether defendant had a prior claim on the car because he had filed first even though the first security agreement had been cancelled. The court held that he did not because a new security interest is a separate transaction and requires a separate filing for perfection, unless the initial security interest has a clause securing future advances.
“That is to say, a single financing statement in connection with a security agreement when no provision is made for future advances is not an umbrella for future advances based upon new security agreements, notwithstanding the fact that involved is the same collateral.” 3 U.C.C.Rep. 1112 at 1120.
It seems clear that if, as the record shows the Bank intended, a security agreement had been executed at the time the 1963 financing statement was filed, we could not reverse the trial court without meeting the Coin-O-Matic case head on. What differentiates this case is the trial court’s finding that there was no security agreement executed in 1963. By accepting the trial court’s holding that no security interest attached until April 30,1965, we would conclude that only one transaction is involved. On the other hand, if we were to acknowledge normal business realities and accept Atlas’ theory that there must have been a series of separate secured loans by the Bank, then the record discloses that the security interests provided that they covered future advances by the Bank. The claimed security interest of October 22, 1963, is, of course, not in the record. The trial judge admitted into the record a copy of the form being used by the Bank at that time and it, as well as the April 30, 1965 agreement, clearly provides that future advances are to be covered thereby. Because of the disposition we make, we need only note in passing that under either of these possibilities, Coin-O-Matic is distinguishable.
In Coin-O-Matic, the intervening secured creditor obtained priority when the initial financing statement and security agreement were liquidated because the court held that the code contemplates that the security interest relates back to an unliquidated prior financing statement. This is the literal interpretation of § 9-312(5) (a).
However, it seems equally clear that the Bank, intending but somehow failing to get a security agreement when the October, 1963, loan was made, would fall heir to a windfall were we to hold that this case is controlled by Example 1 to Comment 4 under U.C.C. § 9-312(5). Under the trial court’s findings, the loan of $38,422.34 was unsecured and if these insolvency proceedings had come before the security agreement of April, 1965, was entered into, the Bank would have been an unsecured creditor. The facts of the case before us do not fit squarely under Example 1 in the Comment because that example discusses application of U.C.C. § 9-312(5) to a single advance by the secured party to the debtor after filing of a financing statement and subsequent to perfection of a second security interest. The record indicates that there were several advances and payments between the Bank and the debtors between October 22, 1963 and April 30, 1965. It is therefore clear that there was not simply a single advance as is contemplated in Example 1. Likewise, although the Bank perhaps intended to enter into a series of secured transactions protected by the October 22, 1963 filing (which would have then brought the case under Coin-O-Matic), the lower court’s finding precludes basing an affirmance solely upon that case.
We therefore conclude that we cannot base our conclusion upon either the application of the Example or the Coin-O-Matic case. This analysis, however, is not determinative of our ease.
Undoubtedly the trial court was chagrined by the fast and loose dealings between the debtors and the Bank and the duplicate dealings with Atlas and therefore felt the equities weighed in favor of Atlas.
The simple answer to this approach is that Atlas had an opportunity to protect itself by checking the files for financing statements and if it had, it would have learned the Bank had a potential interest in the cattle and their increase.
“Banks have traditionally loaned money to ranchers in return for a promissory note and a consensual lien in livestock held by the rancher. The problems involved in using livestock as collateral are numerous, but central among them is the problem of keeping account of the animals * * * Since the collateral cannot be held by the lender, the security agreement typically includes a promise by the borrower assuring that the livestock will not be sold or transferred without the written consent of the secured party. The security interest in the collateral is perfected by filing with the county clerk in the county of the debtor’s residence. In this manner, constructive notice that the livestock is subject to a mortgage is given within the county.” Comment, Commercial Law — Uniform Commercial Code — Security Interests in Livestock, 8 Natural Resources Journal 183.
12A Okl.Stat.Ann. § 9-208 (Uniform Commercial Code § 9-208) provides that a debtor may request information from the lender as to the amount due on the obligation and the collateral covered by the security agreement. If the secured party, without reasonable excuse, fails to comply with the request, he is liable for any loss caused to the debtor thereby and if the debtor has properly included in his request a good faith statement of the obligation or a list of the collateral or both, the secured party may claim a security interest only as shown in the statement against persons misled by his failure to comply. Thus, by its inadvertence Atlas permitted itself to be defrauded.
If notice filing under the code has any efficacy or future value in the commercial world, it must be honored in this case, giving priority to the Bank. The “first-to-file” rule of U.C.C. § 9-312(5) (a) must be recognized.
An analysis used by the court in Coin-O-Matic is appropriate for this case:
“It would seem to this court that without a consideration of the meaning of § 9-312(5) this case might properly be decided on what the parties themselves did , and what the parties themselves intended.” 3 U.C.C.Rep. at 1120.
Thus it is apparent to us that the conduct of the Bank and Atlas’ assignor brings this case within the first-to-file priority rule of that section and necessitates reversal of the trial court’s determination of priority.
We further hold that the record clearly demonstrates and the court properly found fraud on the part of Weedins. The trial court therefore was correct in its determination that the debt to Atlas was non-dischargeable in bankruptcy.
We therefore reverse the Atlas judgment on the issue of priority over the Bank and affirm the judgment in favor of Atlas as it relates to debtors Weedin.
Reversed in part; affirmed in part.
. At the outset we should note that the omission of a reference to “knowledge” in § 9-312 indicates to us that the presence or absence of knowledge of the Atlas Security Agreement is irrelevant. This view, not clarified in tbe official Uniform Commercial Code Comment, is made explicit by the Oklahoma Code Comment following the section.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_casetyp1_1-3-1
|
L
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES v. HERSKOVITZ et al.
No. 121, Docket 22880.
United States Court of Appeals, Second Circuit.
Argued Nov. 14, 1953.
Decided Jan. 25, 1954.
Curran, Mahoney, Cohn & Stim, New York City, Menahem Stim and Albert A. Blinder, New York City, of counsel, for appellants.
J. Edward Lumbard, U. S. Atty., New York City, Leonard Maran and James B. Kilsheimer, III, Asst. U. S. Attys., New York City, of counsel, for appellee.
Before SWAN, FRANK and MEDINA, Circuit Judges.
MEDINA, Circuit Judge.
Appellants Fred Herskovitz and Elias Berger, together with co-defendant Doris Sobel, were indicted in 10 counts for wil-fully aiding, assisting in and counseling, procuring and advising the preparation of false and fraudulent income tax returns, on or about the 15th day of March, 1950, in violation of Title 26, United States Code, § 3793(b). Each of the three defendants was named in three substantive counts, and the 10th count of the indictment charged the same defendants with conspiracy.
On June 18, 1953, after trial in the United States District Court for the Southern District of New York, defendant Herskovitz was convicted on three counts, defendant Berger on two counts, and defendant Sobel acquitted on all counts in which she was named, the conspiracy count as to all the defendants having been dismissed by the trial court at the conclusion of the government’s case. The Court sentenced Herskovitz to concurrent terms of 3 years on each of the 3 counts, and imposed a committed fine of $5,000 on each count; Berger was sentenced to concurrent terms of 1 year and 1 day on the 2 counts. From these judgments of conviction Herskovitz and Berger appeal.
The facts in the case are substantially these. From 1948 to 1950, appellant Herskovitz was a certified public accountant and appellant Berger was a public accountant. They had adjoining offices in suite 903 at 1457 Broadway, New York City. Herskovitz was Berger’s father-in-law and while each apparently had his own “regular clients,” the two were partners in the “business of making income tax returns” for “transient” taxpayers. During the “tax season” between the months of January and April, “transient” taxpayers would request assistance in the preparation of Federal and State income tax returns at the suite of offices just described. The scheme practiced by appellants to defraud the United States consisted of padding deductions on these returns so that every return, when filed, requested a refund from the government.
To carry out this scheme, appellants conducted what can best be described as a “refund factory.” The modus operandi was this: Upon the arrival of a taxpayer, the receptionist would request the individual’s statement of moneys withheld (W-2 Form) and would then inquire whether during the prior years, returns were filled out at the same office. If such was the case, the prior year’s file was obtained, and the taxpayer instructed to wait until an office was available for an interview. Ten taxpayers and one government agent testified about their interviews in appellants’ offices. Although Herskovitz would not admit how many taxpayers he interviewed, other than that it was less than 5,000 in 1950, taxpayers called as witnesses by the government testified that they endured long waiting periods before being interviewed, and that, when occasion demanded, they were given numbers to determine their turn. The evidence indicates that the “factory” did a thriving business.
When his turn was reached, the taxpayer was ushered into the inner offices for the interview. These interviews-were conducted in the main by the appellants, the defendant Doris Sobel, Herskovitz’s daughter, one Silverman, another of Herskovitz’s sons-in-law, and Allan Shoopak, an employee. When business improved, a basement office was also rented to interview taxpayers, and, to further accommodate these “transients,” the appellant Herskovitz during the tax season of 1950 had temporary offices at the Hotel Dixie and in Yonkers. These offices were staffed by the same personnel, augmented by temporary employees.
A mimeographed worksheet, listing every possible deduction that could be taken for a taxpayer, was used by the interviewer. The interview lasted no more than 10 or 15 minutes, and at its conclusion the tax was computed on the worksheet and the taxpayer advised of the amount of refund that he would receive. The taxpayers testified that the names of organizations listed under contributions, the deductions taken for charitable contributions, and the deductions taken for New York City Sales Tax, Miscellaneous Tax, doctors and dentists, medications, work-clothes, worktools, depreciation on car, repairs on car and trav-elling expenses were not given by them to the appellants, although this information appears on the worksheets. The taxpayers signed the worksheets, but did not. go over the figures which were written there by the appellants.
The taxpayer was also requested to sign a blank Federal Income Tax form (Form 1040) at the conclusion of the interview, and was charged a fee of $10. The worksheet was attached to the taxpayer’s file, together with the blank but signed Form 1040, and the prior year’s-return. It is significant that Form 1040’s (the “long forms”) were used so that deductions could be itemized even though the majority of these “transient” taxpayers earned less than $5,000 a year.
After the interview had been concluded, the information which appeared on the worksheets was copied in pencil on a Form 1040, and the pencilled figures, were then copied in ink on the Form 1040> which had been previously signed by the taxpayer. Shoopak, Davis, Reid and Greenberg, all employees of the appellants, testifying as government witnesses, stated that despite the requirement on the returns that the accountant’s name be affixed thereto, they were given no instructions to put their names or appellants’ names on the face of the return as the accountant who prepared it nor did such names appear on any of the returns.
The returns were then mailed, or delivered in person, according to Hersko-vitz’s instructions, to the mail room of the Bureau of Internal Revenue. All the returns filled out in appellants’ offices were filed with the Collector of Internal Revenue at 110 East 45th Street, New York City, irrespective of where the taxpayers lived or worked. In February or March, 1950, Shoopak was instructed by Herskovitz to take the tax returns to the fourth floor mail room and ask for “Mike.” He was further instructed to mention the name “Joe Grill” when he gave “Mike” the returns. Shoopak was also given a note by Herskovitz, which was received in evidence without objection. Written in Herskovitz's handwriting, the note contained the following words: “Mike, 5th floor mail room. Jos. Grill, 110 E. 45.” When Shoopak arrived at the mail room he handed the returns to “Mike.” Reid also delivered returns to the Collector’s offices at 110 East 45th Street, according to Herskovitz’s instructions. He was told by Herskovitz to deliver them to the mail room and to give them to “Mike.” On one occasion, Her-skovitz sent Reid to the Collector’s office to see “Joe Grill.” There was also evidence that a Joe Grill was a deputy collector and auditor of the Third Collection District; and Herskovitz admitted that he was acquainted with said Joe Grill and knew of his connection with the Third Collection District as deputy collector and auditor, although Herskovitz denied knowledge that Joe Grill worked in the mail room there.
There were received in evidence 21 personal income tax returns that had been prepared by appellants as a result of interviews with taxpayers. In every return received in evidence, a refund was requested. But the government audit of 17 of these returns, allowing only legitimate deductions, required a tax liability to be assessed in each case.
All°of the taxpayers’ worksheets, which were attached to appellants’ files, were received in evidence as defense exhibits. An examination of them discloses that not one worksheet has the name of any charitable organization written on it, except possibly the name of the church which a taxpayer attended. The names and amounts on the worksheets were not copied to the Form 1040 until some time after the interview took place, yet every return had at least several names of charitable organizations, as well as a breakdown of the lump sum amount for contributions which appeared on the worksheets. Many names and figures on the return were copied from previous year’s returns of the taxpayer.
The fraud practised by appellants is established beyond cavil. The income tax returns disclose excessive deductions for contributions, union dues, medical expenses, taxes, travelling expenses, workclothes, worktools, depreciation on automobiles and losses. Even dependency claims are falsified. These deductions amounted to from 20% to 50% of gross income. In some cases the amounts deducted for sales taxes were so excessive as to show expenditures greater than the entire gross income of the taxpayer for the year. Travelling expenses were taken as a deduction for a switchboard operator, a tailor, a shipping clerk and a baker. Despite the fact that the taxpayer did not use his car for business purposes the returns prepared by appellants included large deductions for depreciation and repairs.
While- Herskovitz testified that the figures on the worksheets and returns, in the instances handled by him personally, were given to him by the taxpayers in each case, the jury believed the testimony of the taxpayers that these figures had not been supplied by them.
The principal contention of appellants is that, since the conspiracy-count was dismissed at the close of the government’s case, it was error for the trial court to refuse to strike from the record or to direct the jury to disregard certain testimony of the witnesses Eeid, Maddalone, Yankauer, Levine, Bright and Sitkoff received over objection on the representation of government counsel that such testimony was admissible in support of the conspiracy charge.
With respect to much of this testimony it is far from clear that the motions were made in such terms as to make it plain to the trial court that counsel for appellants was making the same points which are now argued before us; but we need not examine that question closely, for it is clear that the testimony offered and received in support of the conspiracy charge was admissible on the substantive charges as well, and that the trial judge committed no error in his rulings.
The substantive counts all referred to the 1949 income tax returns, prepared in early 1950. Some of the challenged testimony, however, dealt also with 1947 and 1948 income tax returns, and included evidence with respect to these returns as well as conversations between each of the appellants and taxpayers during interviews in preparation of these returns. The challenged testimony also dealt with the operations of the office, and included references to “Mike” and “Joe Grill.”
This evidence established a consistent pattern of criminal conduct relevant on the issue of appellants’ guilty knowledge, intent and purpose. It was independently receivable in support of the substantive counts. None of this evidence was rendered incompetent by the dismissal of the conspiracy count. See Nye & Nissen v. United States, 1948, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919; U. S. v. Rossi, 2 Cir., 1950, 182 F.2d 292, 293; U. S. v. Walker, 2 Cir., 1949, 176 F.2d 564, 566, certiorari denied 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547; U. S. v. Kelley, 2 Cir., 1939, 105 F.2d 912, 916.
When the testimony was first offered, there was no occasion for the trial judge to rule that such evidence was inadmissible on the substantive counts, nor did he do so. And even if he had so ruled, there was nothing to prevent him from changing his mind later, after the conspiracy count was dismissed. That the trial judge has a right to change a ruling during the course of a trial is, of course, not open to doubt. Nye & Nissen v. United States, supra.
Thus the effect of the denial of the motions to strike and to direct the jury to disregard was a ruling that the evidence was relevant to the issues arising out of the substantive counts, and that it should remain in the case for the consideration of the jury.
This leaves only the further question, on this phase of the case, of whether it was error for the trial judge not to instruct the jury specifically with respect to this testimony, which had been received over objection. But no request was made for any such further instructions.
After all the progress away from technicalities it would be a sorry state of affairs if we reversed this case merely because the trial judge did not explain to the jury that the evidence which was originally offered to support the conspiracy charge was not to be disregarded because the conspiracy charge had been dismissed, but rather should be considered on the question of intent as part of the evidence of what was going on in the appellants’ office.
Nor, despite the dismissal of the conspiracy charge, was there any necessity for the trial judge specifically to indicate which part of this evidence was applicable to which defendant. Not only did defendants not make any request for such an instruction but, after the trial judge had charged the jury, there was no request for any amplification thereof, he having said:
“No single defendant can be convicted for the commission of any of these crimes on evidence which is applicable solely to another defendant or defendants.”
It is true that it would not have been error had the trial judge expatiated upon the details of the testimony of these various witnesses and explained to the jury that such evidence had a material bearing on the counts of the indictment remaining for their consideration, with specific identification of the conversations or other evidence admissible only against one or the other of these defendants. However, the rulings as made were in fact more favorable than defendants were entitled to receive. The probability is that the jury, if they gave any consideration to the evidence in question, thought such evidence had gone out of the case when the conspiracy count was dismissed. The jury were not present when the motions were made, and they could have recalled no more than the colloquies which took place at the time such evidence was received in support of the conspiracy count, the fact that the conspiracy count had been dismissed and the instructions relative to the substantive counts, there being no reference whatever in such instructions to the alleged objectable testimony. A full explanation of the nature and relevance of this evidence would have served to emphasize it, and the possible damage to either or both of these defendants may well furnish the explanation for the failure of counsel to present the questions squarely by appropriate requests to charge. At any rate, under the circumstances of this particular case, there is little force in the argument that any prejudice resulted from the rulings as made.
The other alleged errors merit no extended discussion. The cross-examination of Herskovitz as to “Joe Grill” and the cheek (Exhibit 53) was proper to impeach Herskovitz’s credibility. The defendants’ Request to Charge No. 33, to limit the applicability of the cheek, was covered in substance by the court’s general language above quoted. There is no duty on the trial court to be more specific. See Blumenthal v. United States, 1947, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154.
If defendants desired to suppress Exhibit 45 as having been obtained by an illegal search and seizure, they should have so moved before the trial. Even at the trial they did not object on this ground to Bright’s testimony or to the exhibit. It is too late to raise the point now.
Finally, it is by no means clear that the taxpayers were accomplices of the appellants. Nor does the failure of the trial court to follow the specific language of defendants’ Requests to Charge Nos. 13, 14 and 15 constitute reversible error. See U. S. v. Block, 2 Cir., 1937, 88 F.2d 618, 621; U. S. v. Becker, 2 Cir., 1933, 62 F.2d 1007, 1009.
Affirmed.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
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songer_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America ex rel. Caswell LATHAN, Jr., Petitioner-Appellant, v. John DEEGAN, Superintendent of Auburn Correctional Facility, Auburn, New York, Respondent-Appellee.
No. 211, Docket 71-1547.
United States Court of Appeals, Second Circuit.
Argued Oct. 14, 1971.
Decided Nov. 1, 1971.
John F. Lang, New York City (Allan J. Berdon, New York City, of counsel), for appellant.
Brenda Soloff, Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.
Before FRIENDLY, Chief Judge, CLARK, Associate Justice, and KAUFMAN, Circuit Judge.
United States Supreme Court, retired, sitting by designation.
IRVING R. KAUFMAN, Circuit Judge:
After more than twelve years of legal maneuvering, Caswell Lathan, Jr. asks this court to reverse the denial of his petition for a writ of habeas corpus based on allegedly involuntary admissions used against him at trial.
Lathan was charged with first degree murder for the July 23, 1959, slaying of Gertrude Stransky. He was tried and convicted in the Bronx County Court before Judge Schulz and a jury. Although this conviction was sustained on direct appeal to the Appellate Division and the New York Court of Appeals, People v. Lathan, 15 A.D.2d 906 (1st Dept.), aff’d. 12 N.Y.2d 822, 236 N.Y.S.2d 345, 187 N.E.2d 359 (1962), remittitur amended, 13 N.Y.2d 670, 241 N.Y.S.2d 164, 191 N.E.2d 668 (1963), the Supreme Court of the United States remanded the ease to the New York Court of Appeals for further proceedings consistent with this opinion in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Lathan v. New York, 378 U.S. 566, 84 S.Ct. 1923, 12 L.Ed.2d 1038 (1964). Jackson declared unconstitutional the New York procedure which required defendants to challenge the voluntariness of confessions before the trial jury.
In accordance with an order of the New York Court of Appeals, the Bronx County Supreme Court held a Huntley hearing to determine the voluntariness of the confession. People v. Lathan, 15 N.Y.2d 723, 256 N.Y.S.2d 935, 205 N.E.2d 200 (1965). Justice Spector, who presided over the hearing, heard testimony from Lathan and thirteen witnesses for the State. The hearing was anything but perfunctory and a lengthy opinion was filed more than a month after the hearing commenced. Justice Spector, after making detailed findings of fact, concluded that Lathan’s confession was voluntary and thus properly admitted at this trial. This order was affirmed by the Appellate Division, People v. Lathan, 30 A.D.2d 1053, 294 N.Y.S.2d 676 (1st Dept.1968), the Court of Appeals denied leave to appeal and the United States Supreme Court denied certiorari, Lathan v. New York, 397 U.S. 941, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). Having thus exhausted his state court remedies, Lathan sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in the District Court for the Southern District of New York. Judge Palmieri denied the petition without a hearing, concluding on the basis of the facts found after the full state Huntley hearing that the confession was voluntary as a matter of federal constitutional law.
We affirm the order denying the petition for habeas corpus relief.
I.
A brief statement of the alleged crime and the confession elicited are necessary to an understanding and disposition of Lathan’s claims. Gertrude Stransky was killed in her Bronx apartment on July 23, 1959, by repeated stabbings. In addition, two rings, other jewelry and some cash belonging to her were stolen. The police uncovered fingerprints in the apartment, and a knife, the suspected murder weapon, was found in an automobile parked nearby.
Lathan, eighteen years old and on furlough from the Army at the time, was apprehended while burglarizing a Yonkers apartment and was taken to a Yonkers police precinct on August 9. After a short interrogation, Lathan signed a confession to the Yonkers burglary charge. He was arraigned without counsel on August 10 and transferred to the Westchester County Jail.
On August 11 two military police, aware only of Lathan’s Yonkers burglary arrest, visited him to ascertain his military status. They testified at the Huntley hearing and Justice Spector found, contrary to Lathan’s claim, that they did not promise Lathan that the military would provide assistance.
Meanwhile, the Stransky investigation zeroed in on Lathan. In an hour long session with four detectives, also on August 11, Lathan denied any knowledge of the Stransky homicide. He insisted also that he had not been in the area of the Bronx apartment house on July 23.
The man who was to prove to be La-than’s chief antagonist, Detective Tobias Stegman of the New York City Police Department, visited Lathan the next day. Instead of disclosing his identity, however, Stegman, dressed in civilian clothes, introduced himself as a lieutenant-colonel in the army and showed La-than his Army identification card. Close scrutiny of the card would have disclosed that Stegman was a member of the Army Reserves. Stegman spoke with Lathan of his Army experiences and stated “the Army and I want to help you.”
The coincidental visit of the military police may have helped create the illusion in Lathan’s mind that the Army was trying to help him. In any event, Lathan began talking about his adventures since leaving his Army post, including a walk to the Bronx on the night of July 23. Lathan revealed that he ascended to the roof of a building to which he had once delivered newspapers and admitted entering an apartment through a window. Stegman then stated to La-than that he knew that a homicide had taken place in that apartment and that Lathan’s fingerprints had been found there. Lathan refused to go beyond his admission that he had entered the apartment in question. After conferring with his associates who had remained outside the interrogation room, Stegman unsuccessfully questioned Lathan again. The total time involved in these sessions was less than two hours.
Stegman returned to question Lathan the following day in the Westchester County District Attorney’s Office. After an initial fruitless interrogation, Stegman met with his associates and then returned and confronted Lathan with the murder weapon and a photograph of the victim. Lathan remained firm in his denial that he killed Mrs. Stransky. At this point, Assistant District Attorney Farrell and Chief of Detectives Walsh, entered the room. Walsh now made an unsuccessful attempt to secure a confession from La-than, while Stegman maintained his silence. Walsh and Farrell left after approximately ten minutes, and Lathan was again alone with Stegman. Becoming fully aware that the evidence against him was overwhelming and that his further denials would accomplish nothing, Lathan launched into his detailed confession. At the Huntley hearing, Lathan contended for the first time that he was motivated to confess only after a promise by Stegman that Lathan would be placed in a mental hospital if he admitted committing the homicide. No mention of this alleged promise was made by Lathan when he testified at his original trial, and Stegman’s denial constitutes additional evidence supporting Justice Spector’s finding that Lathan’s testimony was fabricated.
With the “cat out of the bag,” Lathan scarcely resisted when he was taken to a room in which Farrell, Walsh, Stegman, a stenographer and several other officers were present and repeated his confession. At this time it was Farrell who conducted the questioning, and Lathan’s responses traced the same path as his previous statements to Stegman.
II.
Lathan contends that his admissions to Stegman and the question- and-answer- confession given to Farrell were made involuntarily and their introduction rendered his trial constitutionally defective. Manifestly, if Lathan’s statements were secured today without notifying him of his right to counsel and of his right to remain silent, they would be inadmissible. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda, however, has not been applied retroactively to invalidate confessions introduced at trials commencing prior to June 13, 1966. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Instead, these factors may be considered in the totality of circumstances surrounding the confession in determining its voluntariness. See Clewis v. Texas, 386 U.S. 707, 708-709, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 740-741, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). Only when accompanied by other circumstances tending to indicate that the will of the defendant was overborne will the absence of counsel or the failure to advise of his fifth amendment right, render the confession involuntary and inadmissible in a pre-Miranda case. See, e. g., Clewis, supra (extremely low intelligence of defendant); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336 10 L.Ed.2d 513 (1963) (prolonged incommunicado detention); United States ex rel. Everett v. Murphy, 329 F.2d 68 (2d Cir.), cert, denied, 377 U.S. 967, 84 S.Ct. 1648, 12 L.Ed.2d 737 (1964) (extensive questioning, false promise of police assistance). But none of these factors was found to be present in this ease.
Lathan presents several overlapping theories to support his contention that, since Stegman palmed himself off as an Army officer, the confession was rendered inadmissible. Lathan would have us read Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) as holding that any confession following police deception is involuntary. The holding in that case is not nearly so broad. In Spano, a rookie patrolman who was also a close friend of the defendant stated that his job in the Police Department and the welfare of his pregnant wife and three children would be in jeopardy if Spano did not confess. Moreover, Spano already had been indicted for the crime under investigation when he was denied access to his retained attorney and questioned continuously for eight hours by a battery of some fifteen interrogators. No such factors are presented here. Stegman’s representations with respect to the Army were not of such a character as to overbear Lathan’s will so that he was unable to resist pressure, nor was there the slightest indication that he was fatigued. Stegman merely set the scene —whether or not Lathan believed he was an army officer — for Lathan to unburden himself. The confession was, in fact, induced by Stegman’s demonstration that he had hard evidence linking Lathan to the homicide and not, as alleged, by Stegman’s feigned friendliness. It is inconceivable that a person of reasonable intelligence would confess merely to please an acquaintance of one day, which in substance is Lathan’s claim.
Nor do the circumstances under which Lathan’s confession was secured come within the proscription of United States ex rel. Everett v. Murphy, supra. In Everett the relator was arrested illegally and detained incommunicado during extensive questioning. His confession followed an outright fabrication of a crucial fact by the interrogator. Although the victim already had died, Everett was advised that the victim was only slightly injured and that the police would help reduce the charges against him if Everett would cooperate by confessing. A mere deception by an interrogator, ipso facto, does not invalidate a confession absent other compelling circumstances. In Everett, we focused on the promise of police assistance to reduce the charges as rendering the confession involuntary, stating that the “deception of Everett as to Finoechiaro’s survival of the attack might be ignored if it stood alone.” Id., 329 F.2d at 70. See also United States ex rel. Caminito v. Murphy, 222 F.2d 698, 700-701 (2d Cir. 1955).
Another imperfect arrow in La-than’s quiver is his argument that Stegman may have violated criminal statutes when he posed as an officer in the United States Army and, therefore, that his confession was inadmissible. But the short answer to this is that Stegman was a member of the Army Reserves and legitimately possessed his Army identification card. Thus, it is by no means apparent that Stegman’s alleged conduct violated any of the cited statutes. Finally, assuming arguendo that Stegman did violate one of the statutes, it does not follow that the subsequent confession would be tainted and that such violation would have the consequences for which Lathan contends. It would not aid Lathan if we were to apply a per se exclusionary rule to fruits of the illegality as we do in cases of fourth amendment violations. See, e. g. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is clear to us, as it was to Justice Spector and Judge Palmieri, that La-than’s confession was not a “fruit” of Stegman’s alleged deception.
Other arguments urged by Lathan, which are premised on “facts” found at the Huntley to be untrue, need not concern us. See 28 U.S.C. § 2254(d).
The order of the District Court is affirmed.
. Lathan was sentenced to life imprisonment on June 24, 1960, after a jury recommendation of mercy.
. The New York procedure required the court to exclude a confession only if it determined that under no circumstances could it be deemed voluntary. If a “fair question” of voluntariness was presented, the trial jury would hear the evidence and decide the question of voluntariness itself. The Supreme Court found this procedure defective because, inter alia, a jury might find it difficult to exclude from consideration a confession appearing to be true, regardless of its voluntariness. Jackson, 378 U.S. at 381, 84 S.Ct. 1774.
. This hearing was held in conformity with the procedure dictated in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).
. Judge Palmieri also denied Lathan’s request for a certificate of probable cause, but on June 3, 1971, this court granted Lathan’s motions for a certificate of probable cause, leave to proceed in forma paup-eris and assignment of counsel.
. Since Lathan makes no claim that the state hearing was less than full and fair, we presume the state factual findings to be correct. 28 U.S.C. § 2254(d) provides in relevant part:
* * * a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for- the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct. * * *
. At no time between the arrest of Lathan on the burglary charge and his confession to the murder charge four days later was Lathan advised that he had a right to remain silent and that any statements he made could be used against him.
. The apartment Lathan entered was that of Mrs. Stransky, but Lathan did not admit it at this time.
. Lathan described how he entered a bedroom and saw a naked woman, told her to be quiet and she would not be hurt, punched her in the face to quiet her and stabbed her to death.
. The length of incarceration here appears deceptive, since for two of the days Lath-an was in custody there was no reference to the Stransky homicide. Moreover, no session lasted more than an hour and the total length of all the sessions was less than eight hours. Claims of physical deprivation made for the first time by Lathan at the Huntley hearing were rejected by Justice Spector.
. Judge Palmieri found that Lathan was not in fact deceived by Stegman. Judge Palmieri noted that at the trial Lathan admitted that he suspected Stegman was not an Army officer when Stegman questioned him about the homicide.
. Lathan was not one who would be easily taken in. Justice Spector found him to be “keen, imaginative, sharp, elusive and very articulate * * * ”
. The confession eventually was used against Everett to secure a first degree murder conviction.
. 18 U.S.C. § 912 provides:
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both.
18 U.S.C. makes it a misdemeanor to possess an army identification card except as authorized by law.
. Lathan guides us to Reed v. United States, 252 F. 21 (2d Cir. 1918), which upheld the convictions of persons prosecuted for masquerading as military officers for the purpose of arresting deserters for reward. But we find no indication in Reed that the arrests and subsequent courts-martial of those apprehended by the impersonators were affected.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Claude RICHARDS, Appellant.
No. 13657.
United States Court of Appeals Third Circuit.
Argued Jan. 31, 1962.
Decided Feb. 26, 1962.
R. H. Amphlett Leader, Frederiksted, St. Croix, V. I., for appellant.
Leon P. Miller, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before ALDRICH, GANEY and .SMITH, Circuit Judges.
Sitting by assignment.
PER CURIAM.
Under the narrow scope of a writ of review, 5 V.I.C. §§ 1421-1423, the •evidence is not before us. The only possible question open to petitioner (assuming that certain procedural points are decided in his favor) is whether he could be found guilty of disturbing the peace “by fighting with John Richards” although he had been found not guilty of “commit [ting] an assault and battery on the person of John Richards” on the same occasion. It seems manifest that there may be a spontaneous or voluntary fight in which neither party is genuinely an aggressor. In such instance the peace would be disturbed even though no assault and battery occurred.
The order of the District Court denying the petition is affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_applfrom
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
James Edward CARTER, Appellant, v. Marvin MANDEL, Governor, Robert J. Lally, Secretary of Public Safety and Correctional Service, J. Brown Hardy, Acting Director of Patuxent Institution and etc., Appellees. James Edward CARTER, Appellant, v. J. Brown HARDY, Acting Director, Patuxent, Appellee. Charles Anegus ALLEN, James Edward Carter, Inmates, Patuxent Institution, on behalf of themselves and all others similarly situated, and Robert T. Morgan, Appellants, v. Robert J. LALLY, Secretary, Maryland Department of Public Safety and Correctional Services, Mark A. Levine, Commissioner, Maryland Division of Correction, J. Brown Hardy, Acting Director, Patuxent Institution, Franklin Goldstein, Chairman, Board of Patuxent Institution, Jonas Rappeport, M. D., Associate Member, Board of Patuxent Institution, Rev. Marcus G. Wood, Associate Member, Board of Patuxent Institution, and Peter Lejins, M. D., Associate Member, Board of Patuxent Institution, Jerome D. Fran, Robert A. Gordon, Edward A. Tomlinson, Monor B. Crager, Robert B. Levinson, Olive Quinn, John M. Pettibone, Leonard A. Briscoe, Jasper R. Clay, Jr., Russell J. White, and Robert Cahill, Members of Patuxent’s Board of Directors, Appellees.
No. 77-1530.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 6, 1978.
Decided March 21, 1978.
Charles F. Morgan, Baltimore, Md. (Michael A. Millemann, The Legal Service Clinic; Richard G. Fishman, Baltimore Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellants.
Henry J. Frankel, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Md., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and BUTZNER and HALL, Circuit Judges.
PER CURIAM:
This action was brought to challenge the adequacy of the legal assistance available to Maryland prisoners. The state has not established prison law libraries, but it operates a public defender program. The district court’s opinion carefully analyzes the prisoners’ needs and the public and private assistance that is available. See, Hall v. State of Maryland, 433 F.Supp. 756 (D.Md. 1977).
Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), decided after this case was tried, holds that failure to provide prisoners with adequate law libraries or assistance from legally trained persons violates their constitutional right of access to the courts. With one exception, the district court correctly anticipated the Supreme Court’s ruling. Bounds indicates that the constitutional right of access to the courts extends to federal civil rights claims. 430 U.S. at 827, 828, n.17, 97 S.Ct. 1491. Because the district court concluded that Maryland has no constitutional obligation to provide assistance in federal civil rights cases, 433 F.Supp. at 779-80, that aspect of the case must be remanded for reconsideration in light of Bounds.
The district court found that the legal assistance provided for all other types of litigation was constitutionally sufficient. With respect to these, we affirm. Although litigation is not static and the future may require changes, the record establishes that Maryland has commendably recognized its constitutional obligation to provide legal assistance for its prisoners.
Affirmed in part.
Vacated in part and Remanded.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_respond1_1_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Carl W. HINES et al., Plaintiffs-Appellants, v. ELKHART GENERAL HOSPITAL et al., Defendants-Appellees.
No. 79-1211.
United States Court of Appeals, Seventh Circuit.
Aug. 3, 1979.
Randall J. Nye, Hammond, Ind., for plaintiffs-appellants.
Thomas J. Hall, South Bend, Ind., for defendants-appellees.
Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge.
Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.
WILLIAM J. CAMPBELL, Senior District Judge.
Plaintiffs-Appellants instituted this action in the district court for the Northern District of Indiana on July 3, 1978. The complaint, which invoked jurisdiction on the basis of diversity of citizenship, 28 U.S.C. § 1332, asserted an action to recover damages for the wrongful death of Paula J. Hines, whose death was occasioned by the alleged medical malpractice of defendantsappellees. Defendants responded to the action by moving to dismiss the complaint because plaintiffs failed to comply with the provisions of the Indiana Medical Malpractice Act of 1975 (Act), I.C. 16-9.5-9-1 et seq. The district court dismissed the complaint without prejudice, concluding that the Act applied in federal diversity actions, and upholding the Act against plaintiffs’ numerous constitutional challenges. 465 F.Supp. 421. We affirm the district court’s holding that the Act applies in diversity actions in the federal district courts of Indiana. We find it unnecessary in the circumstances of this case to consider plaintiffs’ constitutional challenges to the Act.
The salient features of the Act are set forth in the district court’s opinion, and we need not repeat them here. It is sufficient to note that plaintiffs failed to comply with the provision of the Act requiring a claimant to file his or her complaint with a medical review panel and to obtain the panel’s opinion on the claim prior to instituting a court action. As in the court below plaintiffs contend here that they were not required to comply with the Act because the Act is not applicable to actions filed in the federal district courts of Indiana.
We dispense with plaintiffs’ first argument that by its very terms the Act is inapplicable to actions in federal court under diversity by agreeing with Judge Sharp’s characterization of this argument as “totally devoid of merit.” 465 F.Supp. at 424. The fact that the Indiana legislature employed two phrases in the Act to refer to courts does not mean that the Act is inapplicable to diversity cases in the federal courts of Indiana. If anything is clear and well established from the decision in Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny, it is the principle that the law to be applied by a federal court in a diversity case is the law of the State, and for that reason “a federal court adjudicating a State-created right solely because of the diversity of citizenship of the parties is only another court of the State . . . .” Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945). We find nothing in the provisions of the Act itself which prevents the Act’s application in the Indiana federal courts exercising jurisdiction under diversity of citizenship.
Plaintiffs also argue that the Act is inapplicable in federal diversity actions because the Act would infringe upon the federal interest in preserving the essential character of the federal courts, particularly the role of the jury. In support of this argument plaintiffs rely on Wheeler v. Shoemaker, 78 F.R.D. 218 (D.C.R.I.1978) and Byrd v. Blue Ridge Rural Electric Co-op, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). We believe plaintiffs’ reliance on these decisions is misplaced.
In Byrd the Supreme Court had under consideration a South Carolina court practice which required a judge, and not a jury, to make a factual determination with respect to an affirmative defense. The Court was faced with the question of whether this state court practice was applicable under Erie to federal actions in South Carolina based on diversity. In holding that the practice was not applicable, the Court noted that the state court rule was not “bound up with the definition of rights and obligations of the parties,” and that there was no suggestion that the rule was “an integral part of the special relationships created by the statute.” 356 U.S. at 536, 78 S.Ct. at 900. After again stressing that the state rule was not bound up with rights and obligations, the Court further held that the application of the state court rule in federal diversity actions could not prevail over the federal policy favoring jury resolution of disputed fact questions. 356 U.S. at 538, 78 S.Ct. 893.
The provisions of the Act in this case are significantly different from the state court practice held inapplicable to federal courts in Byrd. We conclude that application of the Act in the federal district courts of Indiana neither detracts from the independence of the federal judicial system nor disrupts the federal system of allocating functions between judge and jury.
It cannot be disputed that the Act’s requirement of the submission of a claim to the medical review panel for its opinion prior to the institution of a judicial action is an integral part of the rights and obligations established by the Act. This procedure is clearly not a mere form or mode for enforcing rights or obligations, but rather the procedure is bound up with those rights and obligations. Moreover, the Act does not deprive a claimant of a trial by jury; rather, the Act specifically preserves that right. The Supreme Court in Byrd found that application of the state court rule involved in that case to diversity actions would disrupt the traditional federal system of allocating functions between judge and jury. No such result obtains by the application of the Act in this case to diversity cases presenting a claim for medical malpractice in the federal courts of Indiana. Consequently, we. cannot conclude that application of the Act will have the deleterious effects on the federal judicial system which the plaintiffs assert.
The concern in Guaranty Trust Co. v. York, supra, for the proper distribution of judicial power between State and federal courts led to the establishment of the “outcome-determination” policy, which the Court formulated as follows: “[I]n all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of the litigation, as it would be if tried in a State court.” 326 U.S. at 109, 65 S.Ct. at 1470. This policy is to be understood in connection with “the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965). Our holding that the Act is applicable to the Indiana federal district courts exercising jurisdiction on the basis of diversity of citizenship is consonant with the promotion of these objectives.
Plaintiffs also contend that the Act violates the Seventh and Fourteenth Amendments of the United States Constitution as well as various provisions of the Indiana Constitution. For several reasons we do not reach the constitutional questions.
With respect to challenges to the Act under the Indiana Constitution, we have been advised by counsel that the precise issues raised by plaintiffs in this case are presently pending in two appeals to the Supreme Court of Indiana. In view of this circumstance, and in view of the obvious substantial public importance associated with the Act and its purposes, we believe it is appropriate to abstain from any adjudication of the Act’s viability under the Indiana Constitution. See: Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
Plaintiffs’ contention that the Act violates the Seventh Amendment of the federal constitution is presented to us on the basis of an inadequate record. Plaintiffs do not attack the Act as facially unconstitutional on Seventh Amendment grounds, but rather argue that the Act’s requirement of pre-litigation submission of a claim to the medical review panel unconstitutionally impairs their right to a trial by jury because such a procedure involves additional delay and expense and increases their burden of proof. Although compliance with procedures of the Act may produce such results, plaintiffs’ argument is made in a factual vacuum. This case is before us on appeal from an order dismissing the complaint for failure to comply with the Act. In this posture no facts were developed in the district court, and there is no record of any unconstitutional effects caused by the application and operation of the Act. We are thus asked to strike down the Act on the basis of hypothetical and conjectural unconstitutional effects. We decline to make a constitutional adjudication in advance of demonstrated facts supporting the asserted unconstitutional results of the Act’s application. See: Thorpe v. Housing Authority, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Maryland v. Wirtz, 392 U.S. 183, 200-201, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968). For the same reason, we do not address plaintiffs’ contention that application of the limitation of damages provision of the Act to this case violates the equal protection clause of the Fourteenth Amendment.
For the foregoing reasons the judgment of the district court is affirmed.
AFFIRMED.
. I.C. 16-9.5-9-2 refers to “any court of this State”; I.C. 16-9.5-1-6 mentions “any court of law having requisite jurisdiction.”
. In Wheeler the district court found that reference of a medical malpractice case to a medical liability mediation panel established by state statute and appointed by the state court would be inconsistent with and would defeat the purpose of the congressional grant of diversity jurisdiction. 78 F.R.D. at 222-23. As Judge Sharp correctly noted, the statutory provisions under consideration in Wheeler vary drastically from the provisions of the Act involved in this case. The considerations which impelled the Wheeler district court to hold the Rhode Island Medical Malpractice Reform Act inapplicable to federal diversity actions in Rhode Island are not present in this case.
. The Court in Byrd also based its holding on the view that the “outcome-determinative” policy enunciated in Guaranty Trust Co. v. York, supra, was outweighed by a “strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal court.” 356 U.S. at 538, 78 S.Ct. at 901. The court also expressed its uncertainty that the outcome of the case would be substantially affected by whether the disputed factual question was decided by a judge or a jury. 356 U.S. at 539-40, 78 S.Ct. 893.
. See: I.C. 16-9.5-1-6.
. Johnson v. St. Vincent’s Hospital, No. 1078 S. 216; Mansur v. Carpenter, No 379 S. 79. With their brief in this court defendants-appellees filed a motion requesting us to certify to the Indiana Supreme Court questions pertaining to the constitutionality of the Act under the Indiana Constitution. Because of the pendency of the same questions before that court we deny the motion.
. We note moreover that plaintiffs also argue that the limitation of damages provision violates Art. I, § 23 of the Indiana Constitution. This issue, we are advised by counsel, is presently pending before the Indiana Supreme Court. See Note 5, supra.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
In re CARTLIDGE.
(Court of Appeals of District of Columbia.
Submitted May 10, 1026.
Decided June 1, 1926.)
No. 1842.
1. Patents <§=>120 — Patentee of coal-mining machine, having been allowed applications covering two driver methods, held not entitled to allowance of general application covering all possible arrangements for converting machine from one driver method to the other.
Patentee of coal-mining machine capable of being driven by a single chain or by two flexible elements, who has an allowed application covering each method, hold not entitled to allowance of divisional application in general terms, covering all possible arrangements whereby the machine might be converted from one driven by one method to' one driven by the other method.
2. Patents <§=>120.
Patentee is not entitled to general divisional patent covering any means that may be discovered of producing the result accomplished through original patent.
Appeal from Commissioner of Patents.
In the matter of the application of Prank Cartlidge for a patent. Prom a decision denying the application, applicant appeals.
Affirmed.
J. II. Boyden, of Washington, D. C., and L. A. Maxson, of Claremont, N. H., for appellant.
T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
ROBB, Associate Justice.
Appeal from a decision of the Patent Office rejecting the claims of an alleged divisional application relating to coalmining machines. The grounds' of the rejection were: First, that the claims are for substantially tbe same invention covered by appellant’s patent No. 1,538,684, of which this application is claimed to be a division; second, that the claims are unpatentable over the prior art; and, third, that they do not adequately define the invention.
Tho above patent, carrying 141 claims, was issued to appellant on May 19,1925. On the same day there was issued to him patent No. 1,538,685, carrying 81 claims, the application being a division of the original. The drawings of tho present application, filed later, are identical with those of the parent application. An examination of the present application discloses that the alleged invention consists in so arranging the machine that it may be driven by either a single driving chain or by two flexible elements. Tbe claims attempt to eovor broadly all possible arrangements whereby the machine may be converted from one driven by two flexible elements into one driven by a single chain, notwithstanding that appellant has an allowed application covering each of these elements. No mechanism for making the substitution is included. This, therefore, is an attempt through the use of general terms to cover any means that may be discovered of producing tbe result accomplished through tbe original patent. But this may not be done. Miller v. Eagle Mfg. Co., 151 U. S. 199, 14 S. Ct. 310, 38 L. Ed. 121; Heidbrink v. McKesson (C. C. A.) 290 F. 665.
For tbe reasons more fully stated by tho tribunals of the Patent Office, tbe decision is affirmed.
Affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_usc1
|
26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
DISTRICT DIRECTOR OF INTERNAL REVENUE, Appellant, v. LONG BEACH JUNIOR CHAMBER OF COMMERCE, Appellee.
No. 18704.
United States Court of Appeals Ninth Circuit.
Feb. 7, 1964.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum and Gilbert E. Andrews, Attys., Dept, of Justice, Washington, D. C., Francis C. Whelan, U. S. Atty., Loyal E. Keir, Asst. U. S. Atty., Chief, Tax Section, and Richard G. Sherman, Asst. U. S. Atty., Los An-geles, Cal., for appellant.
Riedman & Dalessi, and James W. Ed-son, Long Beach, Cal., for appellee.
Before ORR, JERTBERG and BROWNING, Circuit Judges.
ORR, Circuit Judge:
The trial court found that the Long Beach Junior Chamber of Commerce was a “civic or community membership association” within the meaning of section 4233(a) (3) of the Internal Revenue Code of 1954, and thus was entitled to the admissions tax exemption provided in that section. The government here challenges that finding.
As set forth in its Constitution and ByLaws, the purpose of the Long Beach Junior Chamber of Commerce is:
“to provide the younger business and professional men of the City of Long Beach a medium for training in citizenship and Chamber of Commerce work, to promote and publicize the civic, industrial, recreational, and educational activities of the community, to secure and disseminate accurate information relating thereto, to oppose legislation unfavorable thereto, and to promote and support legislation favorable thereto.
“The organization shall be nonpartisan in all respects and shall not at any time endorse any candidate or individual for public office; and it shall be the policy of this organization to refrain from endorsing or opposing any and all definitely partisan measures.”
The activities of the taxpayer have included the following: “Boys Junior Olympics”, an annual boys track meet; “Wings Over the World”, an activity designed to publicize aviation; a Christmas Tree Lighting Contest; “Operation Phone Santa”, where members of the organization take calls from children to Santa Claus; “My True Security”, an essay contest; good citizenship awards; the “Miss Welcome to Long Beach Contest”, where a girl to welcome beauty contestants to Long Beach for the Miss Universe Contest is selected; “Christmas Cheer Clearing House”, where food and gifts are gathered and distributed to needy families during the Christmas season ; social surveys in the area requested by the City of Long Beach and other governmental agencies; programs to combat juvenile delinquency such as having the Wink Martindale Television Show held at the Long Beach Municipal Auditorium for several weeks, and publicizing same in Long Beach schools; and sponsorship of shows in which Duke Ellington, Fred Waring, Spade Cooley, and others appeared. No profit, commission, or bonus has inured to the benefit of any member of the Long Beach Junior Chamber of Commerce from these activities.
The statute in question here reads:
Ҥ 4231. Imposition of tax
“There is hereby imposed:
“(1) General.—
“(A) Single admission.—
“A tax of 1 cent for each 10 cents or major fraction thereof of the amount in excess of $1 paid for admission to any place.
******
Ҥ 4233. Exemptions
“(a) Allowance._
“No tax shall be imposed under section 4231 in respect of:
******
„ _ . . , ,. (3) Certain musical or dramatic performances.
^ “Any admissions to musical or dramatic performances conducted by a civic or community membership association if no part of the net earnings thereof inures to the benefit of any stockholders or members of such association.”
The performance on which the government claims that the admissions tax was described as follows in the trial court’s proper was findings of fact.
“On January 29, and 30, and February 1, 2 and 3 of 1959 the plaintiff sponsored at the Long Beach California Municipal Auditorium an American version of the Oberam-mergau Passion Play. The perform-anee was presented by a professional theatrical group, Consolidated Concerts Corporation, 30 Rockefeller Plaza, New York, New York, for a consideration of $7,500. The net proceeds, if any, after payment of this consideration and other necessary expenses would go to the Long Beach Junior Chamber of Commerce ‘Youth Activities Fund’.”
The government contends that “the term ‘civic or community membership association’ as used in Section 4233 (a) (3) has reference only to those nonprofit membership associations which are organized and operated primarily for the purpose of conducting musical or dramatic performances for the cultural benefit of the members of the association, such as civic music associations whose members pay annual dues for the right to attend a senf f cor|ce.rtjs; “ requires a rather tortuous twisting of the plain meaning of the statute’s words to reach result contended for by the gov. ernment, and our conclusion is that it says no such thing. The term “civic or community” contemplates an association formed for purposes beneficial to the cornmunity as a whole; one in which members of the community cooperate for cornmunity ends. Taxpayer’s purposes and prior activities indicate that it is precisely the type of association described in the statute.
The several exemptions from the admissions tax for non-profit musical and dramatic productions contained in section 4233 indicate that Congress intended to encourage such productions by eliminating the economic burden of the admissions tax on them. In view of this policy, there is no reason to engraft onto the statute a limitation denying the exemption to a civic or community membership association formed for general purposes which also engages in musical or dramatic productions. The “primary purpose” test urged by the government would deny the exemption to those associations which are most public in nature and limit its benefits to those associations whose activities are more oriented toward benefiting their members, an<^ no^ community as a whole,
We find nothing in the legislative his-tory which would justify ignoring the clear and unambiguous language of the section, even assuming we would be free to do so.
Affirmed.
. See Erie Endowment v. United States, 316 F.2d 151 (3d Cir. 1963); United States v. Pickwick Electric Membership Corp., 158 F.2d 272 (6th Cir. 1946); and Debs Memorial Radio Fund v. Commissioner, 148 F.2d 948 (2d Cir. 1945), all construing the phrase “civic leagues or organizations” which appears in § 501 (c) (4) of the Internal Revenue Code of 1954.
. Int.Rev.Code of 1954, § 4233(a) (1) (A) (iv), (a) (3), (a) (7).
. Compare United States v. Public Util. Comm. of Calif., 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953), and Gilbert v. Commissioner, 241 F.2d 491 (9th Cir. 1957), with Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407 (1943), and United States v. American Trucking Ass’n, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_jurisdiction
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Mary BERRY and Normil Berry v. Peter CURRERI, Appellant.
No. 86-3592.
United States Court of Appeals, Third Circuit.
Argued Dec. 9, 1987.
Decided Jan. 26, 1988.
Diane Trace Warlick (argued), Law Offices of R. Eric Moore, Christiansted, St. Croix, Virgin Islands, for appellant, Peter Curreri.
Henry V. Carr, III (argued), Murnan and Carr, St. Thomas, Virgin Islands, for appel-lees, Mary Berry and Normil Berry.
Before GIBBONS, Chief Judge, and STAPLETON and MANSMANN, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Chief Judge:
Peter Curreri, a physician practicing as a gynecologist in the Virgin Islands, appeals from a judgment in favor of Mary Berry and Normil Berry in their medical malpractice case against him, and from the denial of his post-trial motions for judgment notwithstanding the verdict, for a new trial, and for a remittitur. We conclude that a new trial should have been granted, and thus we will reverse.
I.
Mary Berry consulted Dr. Curreri in 1980 with respect to a gynecological problem, and was advised by him that she should undergo a total abdominal hysterectomy. That surgery was performed by Dr. Curr-eri at Knud Hansen Memorial Hospital, St. Thomas, Virgin Islands, on September 2, 1980. Within three or four days after the surgery, Mary Berry developed severe abdominal pain. Around September 11, a quantity of fecal matter burst through her vagina. She also developed an elevated temperature. Dr. Curreri diagnosed her condition as a recto-vaginal fistula. She was released from the hospital on September 15, 1980. Thereafter she was admitted to Pavis Hospital in Santurce, Puerto Rico, where her condition was accurately diagnosed as a small bowel fistula. The fistula was surgically located and repaired.
Pursuant to the Virgin Islands Health Care Providers Malpractice Act, 27 V.I.C. § 166i, Mary Berry and her husband timely filed with the Medical Malpractice Action Review Committee in the Office of the Commissioner of Health (the Committee) a proposed complaint in which she sought full damages and in which Mr. Berry sought damages for loss of consortium. The allegations of negligence against Dr. Curreri in the proposed complaint are as follows:
24. The defendant was negligent in failing to possess and employ the skills, training and knowledge which he proffered to possess or in negligently failing to exercise such skills, training and knowledge on behalf of the plaintiff Mary Berry.
25. The defendant was negligent in his diagnosis of the plaintiff Mary Berry’s condition and should have known or had reason to know, that the discharge from the plaintiffs vagina was from a small bowel rather than a recto-vaginal fistula.
26. The defendant was negligent in that he failed and neglected to provide proper treatment and care of the plaintiff Mary Berry’s medical condition.
27. The defendant was negligent in that he released plaintiff Mary Berry from the hospital in direct contravention of the medical indications she evidenced at the time.
28. The defendant’s failure and neglect to use due, reasonable or proper skill and care in performing his services on behalf of plaintiff Mary Berry was so gross as to evidence a willful and wanton disregard for the plaintiff Mary Berry’s health, welfare and safety.
Nowhere in the proposed complaint is any reference made to any negligence on Dr. Curreri’s part in diagnosing the need for an abdominal hysterectomy, or in performing that surgery. The quoted allegations refer solely to the diagnosis and treatment of the post-operative complications from that surgery.
Pursuant to 27 V.I.C. § 166i, the Committee selected Dr. Maximo Ruiz, a St. Croix gynecologist, to render the expert medical opinion on the complaint. He reviewed the proposed complaint and medical records obtained from Knud Hansen Memorial Hospital and Pavia Hospital, and after reciting Mary Berry’s course of treatment, opined:
I have to conclude:
1. that this patient had an excellent medical care, and there is no evidence that this case has been neglected during her stay in K.H.M.H. judging by the daily well documented progress notes, order of medication, consultation requested and answered on time, the follow-up of the attending physician and surgical consultant, the summary discharge explained in detail, the course of the patient in hospital, including daily contact of Dr. Curreri with the patient attending surgeon in Puerto Rico regarding the patient’s condition, even though the patient choose [sic] to go to another surgeon, but unfortunately a very unhappy post surgical complication occurred, but a very good end result.
2. Let me emphasize that there are some potential hazards in this kind of surgical procedure due to well recognized complications, the most commonly encountered risks are infection and bleeding; more serious risks are possibility of near-by organs injury such as bladder, urether, and bowel.
3. The treatment of small or large bowel vaginal fistula is surgical with some variations in the repair depending on the size of what segment of the bowel is involved, condition and lengths of time in which fistula has been developed, so it is important to establish a radiologic diagnosis if possible. The management priority when the patient is debilitated with malnutrition states, the patient should be first medical to correct these abnormalities, otherwise it will be a poor surgical risk.
4. Some entero recto-vaginal fistula may follow pelvic abscess, particularly if the bowel adheres to the vaginal cuff and forms part of the inflamatory process of the wall of the abscess.
The quoted part of Dr. Ruiz’s report to the committee makes no mention of the diagnosis or need for the abdominal hysterectomy or of the manner in which the surgery was performed.
Under the Health Care Providers Malpractice Act, the conclusion of the Committee’s expert is not binding on the plaintiff. The Berrys therefore filed in the District Court of the Virgin Islands a complaint identical to the proposed complaint filed with the Committee. Dr. Curreri answered, and the case was eventually listed for made a motion in limine to preclude the Berrys from introducing evidence that the hysterectomy was unnecessary or performed improperly. In making that motion Dr. Curreri relied on 27 V.I.C. § 166i(b), which in relevant part provides:
No action against a health care provider may be commenced in court before the claimant’s proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section....
The district court denied the motion in limine, and evidence eventually was admitted on the diagnosis of need for a hysterectomy and on the manner of performance of the surgery. In ruling on the motion in limine the district court did not read the proposed complaint as alleging improper diagnosis. Instead, the court concluded that the expert, Dr. Ruiz, must have so read it, since he addressed the propriety of the diagnosis in his report. Although the court’s ruling from the bench was not specific, apparently the court’s reference was to the recital of Mary Berry’s course of treatment:
After reviewing the entire document submitted to me: This 32 year P4 was admitted in K.H.M.H. on September 1, 1980 for elective surgery because of fibroid uterus and adenomyosis, associated symptoms of dysmenorrhea, dyspareunia and low backache. Patient underwent TAH and prophylactic appendectomy on September 2, 1980. The surgical and pathologic report confirmed the admitting diagnosis.
The Berrys contend that this recital is an expression of an expert opinion that the diagnosis and surgery were proper, and that the district court was therefore justified in concluding that these claims had been submitted to the Committee.
We disagree. Section 166i(b) provides, conjunctively, that a complaint must be filed with the Committee and that the Committee must obtain an expert opinion. The purpose of the Committee “[is] to arrange for expert review of all malpractice claims before actions based upon such claims are commenced in court.” 27 V.I.C. § 166i(a). It is plain, therefore, that the complaint must set forth a specific claim or claims of malpractice, and that an expert opinion must be obtained on each claim. Here the complaint did not allege malpractice in diagnosing the need for a hysterectomy, or in the performance of that surgery. Thus there was no occasion for Dr. Ruiz to address such a claim. Moreover, the language in which he described the diagnosis and surgery clearly is no more than that, describing, accurately, the contents of medical records, without endorsing their contents.
As noted above, evidence was submitted respecting Dr. Curreri’s diagnosis and treatment. Moreover, the court explicitly submitted to the jury claims of misdiagnosis and of negligent surgery. If, therefore, section 166i(b) limits the subject matter jurisdiction of the district court to consider medical malpractice claims, a new trial must be awarded. The Berrys do not dispute that the statute means what it says, and the cases construing it have treated the Committee filing requirement as jurisdictional. Saludes v. Ramos, 19 V.I. 544, 547 (D.V.I.1983), vacated and remanded on other grounds, 744 F.2d 992 (3d Cir.1984); Quinones v. Charles Harwood Memorial Hospital, 573 F.Supp. 1101, 1103 (D.V.I.1983). A strict reading of the language “[n]o action against a health care provider may be commenced in a court before the claimant’s proposed complaint has been filed with the Committee” is, moreover, entirely consistent with the overall legislative intention animating the Malpractice Act. A principal feature of that act is that the Government of the Virgin Islands procures a group insurance policy for all Virgin Islands health care providers, the premiums of which are paid, in part, by public funds. 27 V.I.C. § 166e. The act limits the amount of an attorney’s contingent fee. 27 V.I.C. § 166f. It also limits the amount of recovery. 27 V.I.C. § 166b. The Committee review process is designed to eliminate claims lacking merit and encourage prompt settlement of meritorious claims. In this context, reading section 166i(b) as anything less than a limitation on the subject matter jurisdiction of the district court would be inconsistent with the overall statutory objectives.
II.
Dr. Curreri challenges the district court’s rulings in several other respects, all of which bear upon the amount of the judgment. The jury verdict awarded Mary Berry $300,000 and Normil Berry $25,000. A judgment was entered “[t]hat plaintiffs Mary Berry and Normil Berry recover from defendant Peter Curreri the sum of $300,000 and $25,000, respectively, together with costs, including reasonable attorneys fees.” Dr. Curreri’s challenges are predicated on 27 V.I.C. § 166b which in relevant part provides:
The total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ($250,000) plus actual expenses up to the time of trial not paid or payable or reimbursed from any other source for reasonable and necessary medical care, custodial care and/or rehabilitation services for each anticipated year of need; and lost earnings.
Dr. Curreri contends: (1) that the $300,000 judgment in favor of Mrs. Berry exceeds the statutory maximum; (2) that in applying the statutory maximum the amount awarded to Mr. Bferry for loss of consortium must be included; and (3) the statutory maximum includes any award of attorneys fees. In support of the third contention Dr. Curreri points to the fact that the Health Care Providers Malpractice Act deals specifically with attorneys fees, by imposing limits on the percentage of the recovery an attorney may charge as a contingency fee. 27 V.I.C. § 166f.
The Berrys respond: (1) that the $300,-000 award to Mrs. Berry is based on a general verdict which may include a permissible award, above $250,000 for lost wages; (2) that 27 V.I.C. § 166b does not modify 5 V.I.C. § 541(b) which vests discretion in the district court to award fees to the prevailing party; and (3) that the $250,-000 limitation of recovery in 27 V.I.C. § 166b is in any event unconstitutional.
Since we have held in Part I that a new trial is required, Dr. Curreri’s challenges to the amount of the judgment are, for purposes of the instant appeal, moot. Moreover, although the judgment provides for a fee award to the prevailing party, the amount of siich an award has not been quantified. Nevertheless, because we are remanding for a new trial, and some of the issues raised by Dr. Curreri may arise in the course of that trial, it is appropriate to give guidance on them.
The Berrys are certainly correct that lost earnings may be recovered in addition to any damages to which the $250,-000 limit in section 166b applies. Since, however, the $250,000 limit is an essential feature of the legislative scheme for stabilizing the cost of malpractice insurance, care must be taken to be sure that a general verdict does not include an amount of damage prohibited by that section. Thus in any medical malpractice case in which the plaintiff seeks to recover lost earnings and other damages, the court should not submit the case to the jury in a manner which results in a general verdict. Special verdict interrogatories should separate the claim for lost earnings from the claim for other damages.
As to Mr. Berry’s claim for loss of consortium, the plain language of section 166b suggests that it is included in the $250,000 limit on recovery. Mr. Berry’s claim is wholely derivative. It stands or falls on the malpractice claim of Mrs. Berry. The Berrys have not called to our attention any authority or legislative history suggesting otherwise.
The attorneys fee question has been addressed by this court in a closely analogous context. In Baptiste v. Government of the Virgin Islands, 529 F.2d 100, 102-03 (3d Cir.1976), the court pronounced dicta to the effect that the $25,000 limit in the Virgin Islands Tort Claims Act, 33 V.I.C. § 3911(c), applied to a judgment for costs, including attorneys fees awarded to the prevailing party. The Berrys point out that the language in section 166b differs from that in the Tort Claims Act, and thus that the legislature may have intended a different result. On the other hand, a construction of the statute which permitted the shifting of fees to a losing health care provider in excess of the maximum recovery specified in section 166b would appear to be inconsistent with the legislature’s overall objective of stabilizing the cost of malpractice insurance; a cost which is borne in significant amount by the Government of the Virgin Islands.
The entire cost of the Tort Claims Act is borne by that Government, which made a legislative decision to limit its exposure in any judgment to $25,000. The Government’s interest in the Health Providers Malpractice Act is not identical, but it is sufficiently similar that the Baptiste interpretation should apply to it as well as the Tort Claims Act. That interpretation of section 166b is suggested, as well, by the inclusion in the Health Care Providers Malpractice Act of limitations on contingent fees as percentages “of the plaintiffs’ recovery.” 27 V.I.C. § 166f.
The Berrys’ constitutional objection to section 166b is that by placing a maximum on the amount of damages which a jury may award in a personal injury action the Virgin Islands Legislature violated the civil jury trial provision of the Seventh Amendment. In support of the Seventh Amendment argument, the Berrys point to Boyd v. Bulala, 647 F.Supp. 781, 788-89 (D.W.Va.1986), which holds that a Virginia statute imposing a damage limitation on jury verdicts in medical malpractice eases in a trial in a federal court violates the Seventh Amendment. The Boyd court relied on Byrd v. Blue Ridge Rural Electric Corp., 356 U.S. 525, 537, 78 S.Ct. 893, 900, 901, 2 L.Ed.2d 953 (1958), and Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935), both of which refer to the factfinding role of juries in federal courts. This contention was never made to, and thus not addressed by, the district court. It is advanced here as a ground for affirming the judgment despite its inconsistency with section 166b. Since we are setting aside the judgment on other grounds there is no reason for addressing a legal contention which was not made in the trial court and which cannot affect the outcome of the appeal. Our decision not to consider the Seventh Amendment contention should not be construed as any endorsement, even tacitly, of the view of the Boyd court on that issue.
III.
Dr. Curreri has also objected to the district court’s instruction in several respects. Since we have granted a new trial which will be limited to the malpractice claims presented to the Committee, the instructions on retrial will be different. There is no reason, therefore, to address these objections on this appeal.
IV.
The submission to the jury of claims of malpractice never presented to the Committee violated 27 V.I.C. § 166i(b), and this error requires a new trial. The judgment appealed from will therefore be reversed and the case remanded to the trial court for proceedings consistent with this opinion.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
AMARILLO BRANCH OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al., Plaintiffs-Appellants, v. AMARILLO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
No. 71-1353.
United States Court of Appeals, Fifth Circuit.
June 9, 1971.
Walter P. Wolfram, Amarillo, Tex., for plaintiffs-appellants.
R. A. Wilson, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Tex., for defendant-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
BY THE COURT:
The finding of the District Court that the rebuilding of Amarillo High School at the proposed location in Southwest Amarillo, rather than at the original downtown location (where the school was destroyed by fire), does not serve to perpetuate or re-establish the dual system is clearly supported by the record. Swann v. Charlotte-Mecklenburg Board of Education, April 20, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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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.
FULLER v. HOFFERBERT.
No. 11602.
United States Court of Appeals Sixth Circuit.
May 29, 1953.
H. Vincent E. Mitchell, Cleveland, Ohio, McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, Ohio, on brief, for appellant.
Alonzo W. Watson, Washington, D. C., Charles S. Lyon, Ellis N. Slack and Helen Goodner, Washington, D. C., John J. Kane, Jr., Cleveland, Ohio, on brief, for appellee.
Before ALLEN, McALLISTER, and MILLER, Circuit Judges.
McAllister, circuit judge.
Norman C. Fuller brought suit for refund of income tax paid for the year 1944, basing his claim upon Title 26 U.S.C.A. § 116(a) (1) and (3), and § 119(c) (3). He contends that during the taxable year of 1944, he was a bona fide resident of Soviet Russia and that, under the provisions of the statute above mentioned and the Treasury Regulations promulgated thereunder, he was entitled to a refund of the amount of income tax, which he claims was erroneously and illegally assessed and collected from him by the Collector of Internal Revenue. On a trial in the district court, his claim for refund was denied, and from such judgment, he appeals.
There is no dispute that the salary which appellant received during the year 1944 was, under section 119(c) (3) above mentioned, paid to him for personal services performed without the United States.
The sole issue in the case is whether, within the intendment of the statute and regulations, Fuller was a bona fide resident of Soviet Russia during the taxable year in question.
In determining this issue, it is necessary to consider the circumstances surrounding Fuller’s journey to Russia; the services he performed there; and the nature of his stay in that country, as evidence of his intentions as to residence in Russia.
Fuller was an engineer who commenced his employment with the firm oí E. B. Badger & Sons Company, of Boston, in 1939. After having been associated with that company in various engineering projects for approximately four years, he was, in the spring of 1943, offered an assignment in Soviet Russia. It appears that the Badger Company, through a lend-lease agreement between the American government and the Soviet Russian government, was designated as the consulting engineering company in the erection of a number of oil refineries for the Russian government. In carrying out its commitments, the Badger Company proposed to Fuller that he go to Russia for an indefinite stay as one of its engineers in charge of supervising the engineering services in constructing and placing in operation the new refineries. At that time, the Badger Company informed Fuller that there were at least four refining units that it had already contracted for, with a number of future units being contemplated. Fuller was, at that time, a young man twenty-seven years old, married, and had a home in Toledo, Ohio. The proposal of the Badger Company to send him to Russia in the midst of the war appealed to him for a number of reasons. There was the chance to better his situation, financially, because of the higher salary offered. There was also the challenge to him as an engineer to engage in carrying out large projects in a great undeveloped country; the opportunity for long term employment; the reputation and prestige that would result to him in his profession from having had such experiences and service; and the spirit of adventure, which probably exceeded the other considerations.
It. was planned by the Badger Company that A. Gilbert Formel, one of Fuller’s friends, and at present chief engineer for a construction company in'the East, would be associated in the Russian expedition, and would be Fuller’s immediate superior. Both Formel and Fuller were specialists and experts in the Houdry Catalytic Cracking Process, and Fuller’s title was Houdry case engineer. During the spring of 1943, Fuller, who was then working for the Badger Company at Marcus Hook, Pennsylvania, on his trips home to Toledo, had stopped off on several occasions at Sandusky, Ohio, where Mr.' Formel was working, to talk over the possibilities of the Russian assignment. They had discussed Russia with a couple of engineers who had already been in that country, and, as a result, were enthusiastic about the prospects for an engineer in that part of the world, and thought along the same lines with regard to its being an opportunity of great promise for them, professionally and financially. At that time, the relations between the American government and the Russian government were very friendly.
From June 1943 until late in the autumn, Fuller and Formel were in New York making arrangements for visas, passports, inoculations, and similar matters, and in November 1943, they left for Russia. Fuller’s route lay through the Gulf of Mexico, Central and South America, Africa, The Sudan, Egypt, Persia, Stalingrad, and Moscow, where he arrived about the middle of December, 1943. The disastrous German defeat at Stalingrad had occurred earlier • that year. After registering with the American Embassy, Fuller was sent to the village of Guriev, which, although described throughout the case as a village, contained approximately 55,000 inhabitants. Guriev is 1,500 miles distant from Moscow and is located at the mouth of the Ural River on the northern shore of the Caspian Sea. A place of extremes of temperature, ranging from 140° Fahrenheit in the summer to 40° below in the winter, and of primitive living conditions, it was a test for the adventurous.
Fuller’s work as an engineer in Russia was to assist the Russian engineers and superintendents in whatever' manner he could with regard to the engineering project. The design of the materials, as well as their fabrication, was American, and it was the job of Fuller to interpret the plans and specifications; to help the Russians in scheduling their work; and to give them suggestions and recommendations in constructing the refinery.
When Fuller and Formel first arrived in Guriev, they were put up temporarily by the Russian government in a house from which the N. K. V. D., the State Police, had evicted the people whose home it had been. Under the agreement with the Badger Company, the Russian government was obligated to provide satisfactory living quarters and furnishings for Fuller and Formel. But what appeared satisfactory to the Russians fell far below the standards which the Americans expected, and it required continual demands and arguments on their part to secure the quarters to which they felt they were entitled. After several weeks of such repeated discussions and arguments, the Russians agreed to construct, and did construct, according to the plans and under the supervision of Fuller and Formel, three cottages for the use of the American engineers and for the storage of their materials and equipment. Each cottage was about 50 feet wide by 100 feet long, with cavity brick walls with dirt insulation, wood pole joists, and wooden roof with roofing paper and tar on top. The cottages were substantially built and were divided into two parts, with one apartment in front and one in the rear, each apartment having a living room, bedroom, bathroom and toilet, and kitchen. They were heated by means of a hot water boiler situated in a building which was erected in the rear of the three cottages. Each cottage had hot water radiator heat from this central heating plant. Around an area of about five acres of land upon which the cottages were built was erected a fence.
The Russians were able to supply only a few old benches and chairs to furnish the cottages. Fuller appears to have shown considerable ingenuity in securing lumber from the Russian authorities and making, with work tools, the necessary chairs and benches to furnish the cottages. In addition, he made clothes racks, shelves, lamps, and other conveniences, with the rather unusual result that when Fuller finally left the country, the Russians had commenced to imitate the construction of Fuller’s lawn chairs on a production line basis.
During his stay in Russia which lasted approximately twenty months, Fuller, after commencing the study of the Russian language in New York, resumed it in Gu-riev with the official interpreter for the oil commissariat with which the American engineers were connected, and continued to spend an hour or two a day for a considerable time in the study of the language until he had acquired such a fair working knowledge that he could carry on conversations on ordinary matters related to daily living with the Russians, as well as to engage in a considerable amount of friendly sociable intercourse with them.
Fuller and Formel found that they were largely dependent upon themselves in their games and amusements. The only sports the Russians engaged in were soccer and boxing. Fuller constructed a ping-pong table and basketball boards. In arranging to play horseshoes, he found he could not procure any suitable horseshoes in the locality because of the fact that the Russian ponies are so small that the shoes with which they are shod are only about five inches in diameter. Fuller, accordingly, carved a horseshoe out of wood in the desired size, and from this model, one of the local blacksmiths made a number of horseshoes. Fuller afterward interested the Russians in these various sports and succeeded in teaching and training a number of them to play the American games, including basketball, baseball, and football, until some good players were developed in these sports.
In order to have a variety of food, Fuller planted a garden within the small so-called compound, and secured seed corn, pop corn seed, tomato seed, and whatever other seeds could be found in the locality. In addition to raising these garden products, he also set out a flower garden. Formel, who was a witness, told of Fuller’s interest in and supervision of cooking, and of his attempt to make the food more palatable by undertaking to translate into the Russian language an American cook book. He found, however, that there were many words in the cook book for which there was no translation, and ended up by giving numbers to the various American cooking materials, and placing the numbers on the various cans and containers, so that the Russian girl who helped in the cooking could put a spoonful of a certain number into a mixture for a recipe. He even undertook to cook the pastry himself, and made the pies for their dinners.
Fuller and Formel had the use of a jeep, and whenever they had the time, they were free to drive anywhere in the country they desired without permit or supervision, the only restricting factors being sufficient food and gasoline for such journeys. Thus, they had a unique chance to see more of the people, and the different parts of the country. In studying the situation in Russia, Fuller found that there was a definite atmosphere of fear and oppression among the ordinary workers and the poorer people in Guriev, and that the rank and file of them lived in continual fear of the secret police, and avoided association with foreigners. However, he and Formel became friends with the so-called “higher level” government officials, and often conversed with, and visited the Russian engineers, the members of their staffs', and the military officers, and their families. They were frequently invited to entertainments and dinners by the Russians, and, in turn, invited the various officials' and their wives to their place for dinner. , They often' accepted invitations to the theatre, some of the dramatic companies on tour staying for four months at a time in the village; and they attended traveling circuses, ballets, and other entertainments which seemed to be available most of the time. They were invited to banqrtets, one, a rather lavish affair in honor of a colonel who, for his work in Guriev, had won the highest award for construction speed and excellence in the entire Soviet Union; and they were afterward invited, with a small, select group of1 officials, to the home of the colonel for further festivity. During their stay, they became fast friends with a number of Russian officials and their families, as a result of their entering into the life of this remote town on the Caspian Sea. During all of this time, Fuller Was studying the Russian people, their language, their land, their economic system, their banking arrangements, and their general conduct of business, and manifested a deep interest not only in his work and environment, but in the adventure of living in a new and strange land.
When Fuller first contemplated going to Russia for the Badger Company, it was his intention to have his wife go with him, but he was told by the company that, while he could not take his wife at that time, if war conditions changed for the better, the company would then see what it could do to make such an arrangement. His marriage had always been happy, and he continued, all during the year of 1944 and until the midsummer of 1945, to try to have his wife allowed to come over. He thought she would like the experience of living a while in Russia, and considered that the house in Guriev would be “an ideal setup” for both of them. In the thought that she might be allowed to come, they sold their house in Toledo in April, 1945. He had his wife take up the matter of securing a visa with the State Department, but they met with one frustration after another. Throughout his whole stay in Russia, Fuller testified, he had intended to remain there indefinitely and to have his wife join him there. Toward the end of his stay, Fuller and his wife decided that he would remain, while his wife resolved, in case she could not join him, to live in America and to follow the necessary training to become a nurse during the war period; and they were reconciled to remaining apart a couple of years longer. Fuller later found out that it was a company policy not to permit employees’ wives to go to Russia, and when it appeared that she probably could not join him in Russia, Mrs. Fuller sent him cablegrams on several occasions in which she encouraged him to stay on, for financial and economic reasons. At that time — in the middle, and even in the latter part of 1945 — the Badger Company still had a number of engineering projects in Russia at Krasnovodsk, Orsk, and Kuibeshev. As late as June, 1945, Fuller was still uncertain as to whether it would be possible for him to bring his wife to Russia. But, by the time Fuller had seen Badger’s chief representative in Russia in Moscow later in the summer of 1945, this official had already arranged with the Embassy for an exit visa for Fuller’s return to America. Even then, he planned to seek other engineering work in Iran, and as late as July, 1945, sent his wife a cablegram telling her that his work in Russia was finished, and that travel arrangements were being made for his return, although that was not his decision. In the cablegram, he also told her that he was considering future work in Russia in employment other than with the Badger Company, or in Sumatra. Fuller testified that during the year 1944, he intended to remain in Russia as long as the Badger Company had work for him to do, and that he definitely considered that such work would last through the year 1944, which it did, and, in fact, for a much longer period.
Thereafter, Mrs. Fuller, because of the repeated frustrations and separation from her husband, began to suffer from nervousness, and decided, in order to recover, to go to Tucson, Arizona, for some months; and it was because of this circumstance, according to Fuller’s testimony, that he decided, during the middle of 1945, that he should come back home to her. He returned to America in October, 1945, after an absence of two years.
Fuller’s testimony is substantiated by Formel in all important respects, and, in fact, is not attacked or questioned by the government. Was he, then, a bona fide resident of Russia during the taxable year of 1944, within the intendment of the statute exempting him from payment of income tax during that period? In this regard, we proceed to consider what is residence, and what is “bona fide residence,” within the meaning of the statute.
Because “domicile” and “residence” are usually in the same place, they are frequently used as if they had the same meaning. “Domicile,” however, means living in a locality with intent to make it a fixed and permanent home, while “residence” simply requires bodily presence as an inhabitant in a given place. Commissioner of Internal Revenue v. Swent, 4 Cir., 155 F.2d 513.
In the case before us, the income tax regulations governing the interpretation of section 116, the principal provision of the statute with which we are concerned, set forth that in order to determine who is a bona fide resident of a foreign country, reference should be made to Treasury Regulation 111, Sections 29.211-2 through 29.211-5, relating to what constitutes residence or non-residence in the United States of America by an alien individual. Thus, the test of an American’s residence in a foreign country for the purpose of exempting from tax, income derived from his economic pursuits while in such country as a resident, is the test of residence applied to an alien who comes to the United States for a business purpose. That test is set forth in Section 29.211-2, as follows: “An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and 1o that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned.”
In Swenson v. Thomas, 5 Cir., 164 F.2d 783, 784, the court had occasion to comment upon the foregoing regulation, and observed : “It excludes ‘a mere transient or sojourner’, and correctly. A transient means literally ‘one going across’, or passing through. ‘Sojourner’ is built around the French word ‘jour’, meaning a day, and signifies a mere temporary presence or visit.” In the Swenson case, the court quoted the regulation, substituting in place of “the United States”, the foreign country in which the taxpayer was a resident during the period in controversy. Following this clarifying method in the instant case, it could be said that the regulation provides: “If the taxpayer lives in Russia and has no definite intention as to his stay, he is a resident. One who comes to Russia for a definite purpose which in its nature may he promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and, to that end, the taxpayer makes his home temporarily in Russia, he becomes a resident there, though it be his intention at all times to return to his domicile in the United States when the purpose for which he came has been consummated or abandoned.”
When it is considered that it required Fuller several months to prepare for the expedition to Russia; that the contract he entered into with the Badger Company provided that the term of his employment would be indefinite; that it was represented to him that the company had contracted for engineering service to be rendered for the erection of four refineries, with several more in contemplation, which would require, and did require engineering services for more than two years; that the service in Russia resulted in greatly increased salary for him, as well as prestige in his profession; that he made efforts to have his wife allowed to go with him and was still planning, after a year and a half of residence in Russia, to have her join him; that he helped to supervise the building of substantial houses for his use during his service in Guriev; that he entered into the life and activities of the community, learning the language, forming friendships, undertaking a serious study of the institutions of the country, and identifying himself with the daily life of the people; that he intended to remain in Russia even longer than his term of service, and thereafter to work as an engineer in Iran or Sumatra— all of these circumstances, which have been set forth in detail make it clear that there was no doubt that his work was of such a nature as to require service in Russia for an indefinite period, and, at least, throughout the year 1944; and that he had intended from the beginning to reside in Russia not only during that period but for a much longer time.
We see little force in the government’s argument that, since the taxpayer was happily married, that his wife could not be in Russia with him, and that he was unwilling to remain away from her for any length of time, her presence was an essential element in the establishment of a “true home.” In the first place, this statement is contrary to the undisputed evidence as to his unwillingness to remain away from his wife for any length of time. What has been set forth in great detail as to the intentions and views of the husband and wife as to his remaining in Russia is repeated throughout the record without qualification or uncertainty. Moreover, there is nothing in the statute or the regulation that remotely suggests that exemption from income tax depends upon whether a taxpayer has established a “true home” in a foreign country for the taxable year. The regulation refers only to one who “makes his home temporarily” in a foreign country.
In Seeley v. Commissioner, 2 Cir., 186 F.2d 541, 544, where a similar question arose, the court, in holding that a taxpayer was a resident in a foreign country entitled to exemption from income tax,, stated that “his purpose, assuming that it had been ‘definite,’ was not one which was sure to be ‘promptly accomplished’; on the contrary it was of ‘such a nature that an extended stay may’ (might) ‘be necessary for its accomplishment, and to that end’ he made ‘his home temporarily’ in London. * * * if his wife had gone along with him there could have been no fair question that together London would have been their ‘temporary home.’ The only reason why she did not go was ‘because of * * * travel restrictions * * *.’ Certainly it would not further the general purpose of the statute to induce Americans to take jobs abroad, if those were granted tax exemption who could take their wives, but those were not, who could not. * * * A man, who settles down to an indefinitely continued performance of such duties, for the time being at least, has a ‘home.’ ”
The fact that, on his application-for passport extension, Fuller gave his. home address as Toledo, Ohio, and his foreign address as “c/o United States Military Mission, Moscow,” is irrelevant and in noway derogates from the fact that he was-a bona fide resident of Russia during the. taxable year of 1944. Moreover, the government’s claim that Fuller’s stay in Russia was subject to such legal and contractual restrictions as to preclude any view that he was a bona fide resident of Russia,, we find to be without merit. The circumstance that Fuller was subject to the draft and that his deferment was subject to renewal every six months had nothing to do with his intention as to residence when he went to Russia to help carry out lend-lease agreements with the consent of his government and where his purpose in going was of such a nature that an extended stay might, and, in this case, would be necessary for its accomplishment. In Swenson v. Thomas, supra, the taxpayer had been employed for service in a foreign country for three years but the contract was terminable "by either party on thirty days’ notice. Yet it was held in that case that the taxpayer had established that he was a bona fide resident of a foreign country during this period and exempt from income tax. The fact that Fuller’s passport also was subject to renewal every six months in no way invalidates his claim of bona fide residence during the taxable period, under either the •statute or the regulation.
Downs v. Commissioner, 9 Cir., 166 F.2d 504, 505, cited by the government in support of its contention, appears rather, by implication, to sustain appellant. There the •court was concerned with the claim for exemption from income tax on the part of a citizen who had served in England under ■contract with an aircraft corporation. The corporation had a contract with the United States government whereby it agreed to organize, equip, and operate an aircraft depot in Great Britain during the war; and the taxpayer was one of the corporation’s workers employed in connection with the project. The contract of employment provided it was to be performed under the regulations and requirements of the corporation, as well as those of the United States government, “and all civil or military laws and regulations in effect from time to time at the place or places of duty * * *.” Employees were prohibited from divulging information connected with the war activities, and were to go and come, when and as directed by the employer, and to journey by any method of transportation chosen by the employer. In remarking upon the character of this employment, the court observed: “It will be seen that persons employed under the contract, and who performed services under it, were admi#ied to the foreign country for specific work directly related to the United States Government’s war efforts, and that they were handle'd, controlled and restricted much the same as military personnel.” (Emphasis supplied.) The court held that the salaries of such employees were not exempt from income tax under the statute and regulation, and, in discussing the regulation, made this significant declaration: “Section 29.211-2 unquestionably is drawn with the understanding that unless the United States citizen abroad ‘makes his home temporarily’ in the foreign country, that is, as we see it, identifies himself in some degree with its customs and lives under and within such customs, he is not a resident of the foreign country in which he is staying temporarily.” The foregoing could be somewhat expanded, in a general sense, by saying that such a citizen makes his home temporarily in a foreign country, where he enters into the life of the community, takes part in the activities of the people, engages in social intercourse with the citizens, cultivates friendships with them, and identifies himself with their daily lives, their entertainments, their amusements, while intending to continue to live in their country for an indefinite period.
We may here take note of a claim that the legislative history of the tax law discloses support for the government’s position in this case. During the course of the hearings on the amendment, the chairman of the committee having the matter under consideration remarked that he might be able to shorten the testimony of one of the witnesses by stating that “the complete elimination of Section 116(a) [the provision with which we are concerned in this case] was not really intended, that it was not the primary purpose in the case of the bona fide, non-resident American citizen who established a home and maintains his establishment and is taking on corresponding obligations of the home in any foreign country, but there is some need for treatment of this section, so that the technicians, American citizens who are merely temporarily away from home could be properly reached and dealt with for taxation purposes.” We cannot see, adopting the most favorable view of the government’s argument, that the foregoing discloses an intention that would subject the appellant in this case to income tax during his residence in Russia. In any event, it is not every fragment of a discussion in which a member of Congress participates,, informally, with a witness in a hearing before a committee, that is considered a guide or an aid in the construction of a statute. A senator or a representative might often conclude that a remark which he made at the inception of the consideration of a new statute during a hearing was improvident in the light of subsequent reflection. Certainly, such remarks and observations are not aids in construction, and the foregoing quoted statement, made to a witness during a hearing on an amendment, cannot be considered by a court called upon to construe a statute, as having the same dignity and force as the language of the statute itself. We have before us a statute and a regulation which clearly elucidates its meaning.
Under the regulation, Fuller could not be called a mere transient or sojourner in a foreign country during the taxable year of 1944. Under its provisions, he was clearly a bona fide resident of Russia during the taxable year and is exempt from payment of income tax during that period. See Myers v. Commissioner of Internal Revenue, 4 Cir., 180 F.2d 969.
In accordance with the foregoing, the judgment is reversed, the assessment expunged, and the case remanded with directions to enter a judgment for the taxpayer in the amount claimed.
. Title 26, U.S.O.A. § 316 (1945 Edition), provides:
“Exclusions from gross income
“In addition to the items specified * * *, the following items shall not be included in gross income and shall be exempt from taxation under this chapter:
“(a) Earned income from sources without the United States.
“(3) Foreign resident for entire taxable gear. In the case of an individual citizen of the United States, who establishes to the satisfaction of the Commissioner that he is a bona fide resident of a foreign country or countries during the entire taxable year, amounts received from sources without the United States (except amounts paid by the United States or any agency thereof) if such amounts constituíe earned income as defined in paragraph (3); but such individuals shall not be allowed .as a deduction from Ms gross income any deductions properly al-locable to or chargeable against amounts excluded from gross income under this subsection. * * * “(3) Definition of earned income. For the purposes of this subsection, ‘earned income’ means wages, salaries, professional fees, and other amounts received as compensation for personal services actually rendered, but does not include that part of the compensation derived by the taxpayer for personal services rendered by him to a corporation which represents a distribution of earnings or profits rather than a reasonable allowance as compensation for the personal services actually rendered. * * * ”
Title 26, U.S.C.A. § 119, provides-
*******
“(c) dross income from sources without United States. The following items of gross income shall be treated as income from sources without the United States:
* * * * * *
“(3) Compensation for labor or personal services performed without the United States; * *
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
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.
Joseph D. HANRAHAN, Appellant, v. ST. VINCENT HOSPITAL, Appellee.
No. 73-1782.
United States Court of Appeals, Eighth Circuit.
Submitted May 13, 1974.
Decided May 22, 1975.
Donald E. O’Brien, Sioux City, Iowa, for appellant.
William E. Kunze, Sioux City, Iowa, for appellee.
Before JOHNSEN and VOGEL, Senior Circuit Judges, and TALBOT SMITH, Senior District Judge.
TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.
TALBOT SMITH, Senior District Judge.
Joseph D. Hanrahan (hereinafter plaintiff) appeals from a judgment entered on a jury verdict absolving defendant St. Vincent Hospital from liability for injuries allegedly sustained by him while in the care and custody of the hospital. The condition complained of, a perianal abscess, developed while plaintiff was recuperating from a gall bladder operation. Plaintiff alleged that the abscess was caused by the improper administration of an enema by nurse Ann Wendte, an employee of defendant. In particular it was alleged that the enema was pushed through the skin of the rectum and its contents discharged “where it was not intended to go.” There, was, however, no testimony of a perforation or hole in the rectum, such as would have been made by poking a tool of some kind through the lining of the rectum. It was also testified that the abscesses of this type are not “real uncommon” and may be caused by “a number of different things” such as seeds and fishbones and other objects that may pass through the digestive tract, undigested, and lodge there.
In this state of the proofs the plaintiff argues that the accident or occurrence “speaks for itself” and that he was entitled to go to the jury on the theory of res ipsa loquitur. The trial court held not. We affirm.
The controlling principles of Iowa law in this regard were recently summarized in Cronin v. Hagan, 221 N.W.2d 748 (Iowa 1974), a case which rejected a similar contention:
Before submission of a case on the theory of res ipsa loquitur plaintiff must prove existence of essential facts necessary to bring the rule into operation. They are: (1) exclusive control and management of the instrumentality which caused the injury complained of by the person charged with negligence and (2) an occurrence causing the injury which was of such a type as in the ordinary course of events would not have happened if reasonable care had been used. [Citations omitted.] In the absence of either of these elements the doctrine does not apply. [Citations omitted.]
This court must examine the evidence in light of the principle stated above and determine whether plaintiff presented substantial competent evidence of sufficient weight to generate a jury question as to the existence of the foundational facts giving rise to the res ipsa loquitur inference.
221 N.W.2d at 751-52.
The trial court held that the showings made were insufficient to entitle the plaintiff to go to the jury upon the first “foundational fact,” the exclusive control of the instrumentality causing the injury. The Supreme Court of Iowa has directly addressed itself to this issue in Lagerpusch v. Lindley, 253 Iowa 1033, 115 N.W.2d 207 (1962) holding that:
In the case at bar neither the doctor nor the hospital were in full control of the instrumentalities involved. They could deal with the body of plaintiff’s wife, but they had no control over her physical frailties, allergies, reactions or idiosyncracies.
The doctrine of res ipsa loquitur should be used very rarely in medical cases. [Citations omitted.]
233 Iowa at 1038, 115 N.W.2d at 210. (Footnote added.) We find no error in the court’s ruling.
Moreover, even should such showing have been held made, plaintiff’s cause is not advanced because of the complete lack of proof as to the second foundational fact required by the Iowa courts: that the injury is of a type usually caused by negligence.
As to the second foundational fact the Iowa courts have recognized that even the best professional service may be hindered or defeated by factors outside human control. Thus the doctrine of res ipsa loquitur has been applied sparingly in medical malpractice cases, and only to situations where the injury truly “speaks” of negligence. Wiles v. Myerly, 210 N.W.2d 619, 626 (Iowa 1973) (unusual injury to a healthy part of the body not within the area of surgery); Frost v. Des Moines Still College of Osteopathy & Surgery, 248 Iowa 294, 79 N.W.2d 306 (1957) (unusual injury to a healthy part of the body not within the area of surgery); Whetstine v. Moravec, 228 Iowa 352, 373, 291 N.W. 425, 435 (1940) (root of tooth falling into a man’s lung during extraction operation).
Whether the application of an enema in such a manner as to cause a perianal abscess is the type of occurrence which in the ordinary course of things would not happen if reasonable care had been used is in our view a question outside the common experience and competence of laymen and must rest, if at all, upon the testimony of experts. In this regard the plaintiff cites expert testimony that it is highly unusual for a perianal abscess to develop in the ■ place at which his was located. But neither this testimony nor other in the case is probative of the question whether, in the common experience of experts, such an abscess is ordinarily the result of negligence. As was said in Perin v. Hayne, 210 N.W.2d 609, 615 (Iowa 1973):
Rarity of the occurrence is not a sufficient predicate for application of res ipsa loquitur. “Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which the defendant is not responsible.” [Citations omitted.]
We conclude, therefore, that the trial court properly refused to submit Count II to the jury. See Cronin v. Hagan, supra at 753; Perin v. Hayne, supra at 615.
Plaintiff also complains of the court’s rulings with respect to the rebuttal testimony of witness Davenport, excluding parts thereof and admitting others. The discretion of the trial judge with respect to the admission or exclusion of rebuttal testimony is well established, and we find no abuse of such discretion upon the facts before us. The excluded testimony was substantially identical to that elicited from another witness in plaintiff’s case-in-chief.
We have carefully reviewed the briefs and record and find no prejudicial error in the other evidentiary rulings which plaintiff challenges. The judgment is
Affirmed.
. Count I of plaintiff’s Complaint alleged specific acts of negligence; Count II was based on the doctrine of res ipsa loquitur.
Jurisdiction in the district court was founded on 28 U.S.C. § 1332. The parties agree that Iowa law governs the controversy.
. See Mogensen v. Hicks, 253 Iowa 139, 143, 110 N.W.2d 563, 566 (1961); Gebhardt v. McQuillen, 230 Iowa 181, 186, 297 N.W. 301, 303 (1941); Whetstine v. Moravec, 228 Iowa 352, 369-70, 291 N.W. 425, 433 (1940).
. Gebhardt v. McQuillen, 230 Iowa 181, 187, 297 N.W. 301, 304 (1941).
. See e. g. Lagerpusch v. Lindley, 253 Iowa 1033, 1038, 115 N.W.2d 207, 210 (1962); Mogensen v. Hicks, 253 Iowa 139, 143, 110 N.W.2d 563, 566 (1961).
. See Crane v. Cedar Rapids & Iowa Ry., 160 N.W.2d 838, 847 (Iowa 1968), aff’d, 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969); Robson v. Barnett, 241 Iowa 1066, 1070, 44 N.W.2d 382, 384 (1950).
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_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Plaintiff-Appellee, v. Heriberto Nanez HUERTA, Defendant-Appellant.
No. 76-1530.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Nov. 9, 1976.
Decided Jan. 11, 1977.
David L. Russell, U. S. Atty., and Charles Lee Waters, Asst. U. S. Atty., Oklahoma City, Okl., on briefs, for plaintiff-appellee.
Joseph P. Constantine, Denver, Colo., on briefs, for defendant-appellant.
Before LEWIS, Chief Judge, and PICKETT and SETH, Circuit Judges.
PICKETT, Circuit Judge.
Appellant Huerta was convicted of distributing heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). On appeal he contends that the evidence is insufficient to sustain the conviction and that the statutory schedules defining controlled substances as set forth in 21 U.S.C. § 812 are ineffective because of the failure of the Attorney General of the United States to republish the schedules as required by that section. A study of the record convinces us that the evidence and inferences to be drawn therefrom are sufficient to sustain the verdict, and that the claim that the schedules are invalid is without merit.
The evidence shows that on January 6,1976, correctional officers at the El Reno, Oklahoma Federal Reformatory received a tip from a confidential source that there was a quantity of heroin in one of the dormitories of the institution which would be distributed that evening. The dormitory was divided into small rooms with walls about five feet high. These were referred to as “cubicles” and were occupied by individual inmates who were confined in the institution. After receipt of the information, a correctional officer secreted himself in an attic above the dormitory where he had full view of the cubicles. He observed three inmates, including Huerta, enter the cubicle occupied by inmate Hernandez. Later, two other inmates arrived. Huerta then placed a pane of glass on a shelf in the cubicle and emptied the contents of a small red package onto the glass. The substance was divided into five portions, one of which was dissolved in a small metal container where it was heated and extracted through a needle into a plastic syringe. Huerta proceeded to inject the contents of the syringe into the arm of one of the other inmates. This procedure was followed until the five portions were disposed of. The gathering then dispersed, with Huerta and inmate Sierra moving to the cubicle occupied by Huerta. There Huerta was observed placing a small red package into a slit in the fly of his trousers. Other officers were notified, and as Huerta and Sierra left the dormitory, they were detained, taken to the supervisor’s office and searched. Two small red packages were found enclosed in the fly of Huerta’s trousers. The packages contained heroin. A hypodermic syringe and two needles were located in the same area of Sierra’s trousers. Traces of heroin were found in the syringe. No other syringe was found. This uncontradicted evidence, direct and circumstantial, is ample to sustain the jury’s verdict. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975); United States v. Downen, 496 F.2d 314 (10th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); United States v. Addington, 471 F.2d 560 (10th Cir. 1973).
The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., established five schedules of drugs and controlled substances known as Schedules I, II, III, IV and V. In these schedules were listed the initial substances to be controlled. Section 812(c) of the Act provided that the five schedules “shall, unless and until amended pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated. . . ” Section 811 of the Act provides a procedure by which the Attorney General of the United States may by rule add to or remove from a schedule a controlled substance, or may rearrange them within the schedules. Section 812(a) states:
. The schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after the date of enactment of this subchapter and shall be updated and republished on an annual basis thereafter.
Apparently, the schedules have not been published strictly as required by statute. It is contended by appellant that since the schedules were not updated and republished within the time required by the statute, they lapsed and thereafter were ineffective. In other words, the contention is that the failure to republish the schedules resulted in a decontrol of all the substances initially specified in the statutory schedules.
The obvious purpose of Section 812 was to include in the five schedules all of the substances which were then to be controlled. That section of the Act states that “[sjuch schedules shall initially consist of the substances listed in this section.” We are convinced that the clear intent of Congress was that the schedules should remain as initially adopted until changed by action of the Attorney General. The required republication of the schedules was to keep the public advised of any changes that had been made in the schedules. We cannot attribute to Congress an intention to create a situation whereby the failure of the Attorney General to republish the schedules would, in effect, nullify the Act. We hold that the failure to publish the “updated” schedules as required by Section 812(a) had no effect upon the validity of those substances initially listed in the five schedules. Those substances, unless removed by action of the Attorney General, continued to be controlled substances regardless of publication. After full discussion, this conclusion was reached in United States v. Monroe, 408 F.Supp. 270 (N.D.Cal. 1976), and United States v. Andrews, 408 F.Supp. 1007 (N.D.Cal.1976). We do not decide whether control of a substance added to the initial schedules becomes effective before publication.
AFFIRMED.
. The rule as to the sufficiency of the evidence to sustain a jury verdict in a criminal case is stated in United States v. Addington, supra at 563, as follows:
In determining whether the evidence is sufficient to support a jury verdict of guilty we must view the proof in the light most favorable to the Government to ascertain if there is sufficient substantial evidence, direct and circumstantial, together with the reasonable inferences therefrom, from which the jury might find the defendant guilty beyond a reasonable doubt. .
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_usc1
|
45
|
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.
John W. HANEY, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
No. 11400.
United States Court ol Appeals Seventh Circuit.
Oct. 6, 1955.
Harvey W. Johnson, Spartanburg, S. C., for petitioner.
Myles F. Gibbons, Gen. Counsel, Chicago, 111., David B. Schreiber, Associate General Counsel, Railroad Retirement Board, Chicago, 111., Edward E. Reilly, William A. Eggert, Railroad Retirement Board, Chicago, 111., of counsel.
Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.
FINNEGAN, Circuit Judge.
Haney, petitioner here, seeks reversal of the respondent Railroad Retirement Board’s decision denying him sickness benefits under the Railroad Unemployment Insurance Act. After a hearing, in which Haney testified, the Board’s referee rejected his claim in a decision containing findings of fact and various relevant recitations. Thereafter, on Haney’s appeal, the referee’s decision was affirmed by the administrative agency in a written statement embodying its findings of fact, discussion and decision. The Board found that: (i) no day in the period November 1, 1953 through to January 8, 1954, for which Haney made claim, constituted a day of sickness because Haney’s “statement of sickness” was tardily filed and, (ii) none of the days January 2, 5, 6, 7 and 8, 1954 could be a “day of sickness” since vacation pay received by Haney for those five days constituted “remuneration” under the Act.
Our review is authorized by § 5(f), of the Act which provides, inter alia:
“It [the court] shall have power to enter upon the pleadings and transcript of the record a decree affirming, modifying, or reversing the decision of the Board, with or without remanding the cause for rehearing. The findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive. * * *” (Italics ours.)
We find that the Board’s findings of fact, here, meet that statutory test. Ellers v. Railroad Retirement Board, 2 Cir., 1943, 132 F.2d 636. However, Haney challenges the Board’s application of certain statutory terms to the facts found by that agency, and he questions its interpretation of some words appearing in the Act. His attack is launched from the platform of these two findings made by the Board:
“2. A statement of sickness dated January 14, 1954, received at the Board’s Atlantic regional office on January 18, 1954, was the first statement of sickness filed by, or in behalf of, appellant with respect to the period, November 1, 1953 to January 8, 1954, inclusive for which he claims sickness benefits. Accordingly, none of the days in the period, November 1, 1953 to January 8, 1954, inclusive, is a ‘day of sickness,’ within the meaning of the Act, with respect to appellant.
“3. Appellant is not entitled to benefits under the Act with respect to any of the days in the period, November 1, 1953 to January 8, 1954, inclusive.”
While we recognize our basic interpretive responsibility, it appears to us that the Board acted within the legislative framework, provided by Congress, and correctly ascertained if days of sickness, mentioned in the Act, were applicable to Haney’s claim. Gray v. Powell, 1941, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301.
Regulations, 20 Code Fed.Regs. § 335.-104(a) and (b), promulgated by the Board under its statutory rule-making power made it encumbent upon Haney to file a statement of sickness at the agency’s office within 10 days. He did so only tardily. The Act, itself, requires filing a “statement of sickness”; the Board sets the time limit. On the facts before us we perceive no sound reason for striking dawn the Board’s interpretation and ascertainment of reasonableness as used in its own regulations concerning when the requisite claim form could be considered as filed despite expiration of the time limit. There is no claim that these regulations are ultra vires, only that the Board erroneously applied them. Indeed by disputing the Board’s interpretation of its regulation, Haney recognizes it.
The judgment appealed is affirmed.
Affirmed.
. 52 Stat. 1094 and 60 Stat. 722, 735 as amended; 45 U.S.C.A. §§ 351-367.
. 52 Stat. 1101, 45 U.S.C.A. § 355(f).
. 45 U.S.C.A. § 228j (b) (4) and § 362(2).
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_appel1_7_5
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Plaintiff-Appellee, v. Donald Hugh HALL, Defendant-Appellant.
No. 76-1140.
United States Court of Appeals, Ninth Circuit.
Feb. 25, 1977.
Rehearing Denied April 12, 1977.
Craig Mehrens, Phoenix, Ariz., argued, Mehrens & Pearce, Phoenix, Ariz., for defendant-appellant.
Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., Thomas N. Crowe, Asst. U. S. Atty., argued, Phoenix, Ariz., for plaintiffappellee.
Before WRIGHT and WALLACE, Circuit Judges, and BURNS, District Judge.
Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation.
WALLACE, Circuit Judge:
Hall was convicted of three counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b). Hall claims that the district judge improperly defined cocaine to the jury and refused to instruct the jury on his theory of the case. He also claims that the district judge erred in denying his motion for judgment of acquittal. We affirm.
I
Hall’s challenges to the guilty verdict are based upon one central contention: The substance which he sold to government agents was not properly proven to be cocaine. Under federal narcotics law, cocaine is defined as:
Coca leaves (9040) and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine (9041) or ecgonine (9180).
21 C.F.R. § 1308.12, Schedule 11(b)(4); see 21 U.S.C. § 812(a) and (c), Schedule 11(a)(4). Thus it was necessary for the government to prove that the substance which Hall sold was either “natural” cocaine, derived from coca leaves, or a chemical equivalent thereof.
The government’s expert witness, Medina, testified that he had performed various tests and concluded that “cocaine was detected in the exhibits submitted.” On cross-examination, Medina stated that cocaine, like most organic compounds, has many “isomers.” Isomers are two or more compounds which have the same molecular formula but different molecular structures. The variations in structure may give rise to different chemical characteristics. Medina testified that he had not tested the substance to determine whether it consisted of the “levo” isomer of cocaine (1-cocaine) or the “dextro” isomer (d-cocaine). L-cocaine is “natural” cocaine, a drug derived from the coca leaf, whereas d-cocaine is a chemically synthesized compound. Although use of a polarimeter would have distinguished between the two isomers, Medina did not employ the device, nor did he conduct any of the other tests which could have been used in order to make the distinction.
Having thus sought to cast doubt on the government’s proof that the substance was natural cocaine, Hall called his sole witness, Shapiro, to testify concerning the properties of the two isomers. Shapiro testified that d-cocaine is not the chemical equivalent to 1-cocaine and that d-cocaine would have a different physiological effect on the human body than 1-cocaine. Prior to this testimony, Medina had also discussed the properties of the two isomers, stating that they “would behave chemically equivalent [sic] except for the rotation of the polarized light ... in the polarimeter.” Thus, both witnesses indicated that there were some differences between the two isomers, although there was an apparent conflict as to whether there was a chemical equivalency.
II
Hall contends that the court erred in refusing to give a requested instruction concerning his theory of the case. While it is true that a defendant is entitled to an instruction on his theory of the case if it is supported by law and has some foundation in the evidence, United States v. Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 821, 1095, 94 S.Ct. 119, 38 L.Ed.2d 54 (1973); United States v. Shewfelt, 455 F.2d 836, 838 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972), the court is not required to accept a proposed instruction which is manifestly intended to influence the jury towards accepting the evidence of the defendant as against that of the prosecution. See United States v. Wayman, 510 F.2d 1020,1026-27 (5th Cir.), cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). Here the requested instruction was argumentative. There was a question of fact whether the two isomers were chemically equivalent within the congressional meaning of this term. Where the evidence raises a factual issue, an instruction dictating the result invades the ultimate fact-finding role of the jury. See Travelers Ins. Co. v. Ryan, 416 F.2d 362, 364 (5th Cir. 1969); Nunley v. Pettway Oil Co., 346 F.2d 95, 99 (6th Cir. 1965). Thus, the district judge committed no error in rejecting it.
Also, the district judge properly instructed the jury on this issue. After reading the indictment and enumerating the elements of the offense, he stated:
Now, cocaine is coca leaves, and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances.
So it’s a jury question in this case whether the substance is — you have to decide whether the substance is, one, either chemically equivalent to cocaine or whether the substance here is, in fact, the natural substance or derivative of the coca leaf.
Now, if you find the substance is chemically equivalent to cocaine or that it is, in fact, cocaine or a derivative thereof, then the substance here is violative of the law.
In this instruction, the district judge pointed out that a conviction must rest on a determination that the substance in question was cocaine which was “violative of the law.” His definition of cocaine closely tracked the statute. This was sufficient to charge the jury with the responsibility to decide whether the substance was indeed “illegal” cocaine. Thus the court’s instruction adequately covered the substance of the instruction requested by Hall.
Hall contends, however, that the either/or statement in the court’s instruction was erroneous in that it precluded a finding by the jury that the substance may have been something other than “illegal” cocaine. Viewing the instruction in its entirety, there was no error. The very next sentence after the either/or statement is couched as an if/then proposition — if the substance is natural cocaine derived from coca leaves or a chemical equivalent, then the substance is violative of the law. This makes it clear that the jury had a real choice in determining whether the substance was illegal.
Ill
Hall also alleges that because of the government’s failure of proof, the district judge should have granted his motion for judgment of acquittal at the close of the evidence. In reviewing a denial of a motion for acquittal, we must inquire whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). It is not necessary for the evidence to exclude “every hypothesis but that of guilt.” Id. at 1242-45.
In this case, while the evidence does not definitively exclude the possibility that the substance sold by Hall was not natural cocaine or its chemical equivalent, there was sufficient evidence for the question to go to the jury. Medina testified that his tests indicated that the substance was cocaine. In addition, while Medina’s tests could not distinguish between the isomers of cocaine, there was extensive circumstantial evidence showing that the substance was natural cocaine derived from coca leaves (1-cocaine) rather than d-cocaine. The government presented evidence that d-eocaine was difficult and expensive to make. More importantly, the experts had never actually found a specimen of d-cocaine. Finally, d-cocaine could be synthesized anywhere, according to the experts, yet instead of basing his operations in the interior United States, there was evidence that Hall was engaged in a smuggling operation to bring drugs into the United States from Mexico. This evidence, with reasonable inferences drawn therefrom, is more than adequate to permit a rational conclusion by the jury that the substance sold by Hall was, beyond a reasonable doubt, cocaine. The motion for judgment of acquittal was therefore properly denied.
AFFIRMED.
. Hall requested the following instruction:
Defendant’s Theory of the Case. The United States statute only prohibits cocaine or its chemical equivalent, which is derived from the coca leaf. Cocaine has many isomers. One isomer is known as 1-cocaine or (-)-cocaine. The 1-cocaine or (-)-cocaine is an isomer that is the natural product from the coca leaf.
Another isomer of cocaine is d-cocaine or ( + )-cocaine. It is not a natural product from the coca leaf nor is it a chemical equivalent.
The law does not prohibit distribution of isomers of cocaine which are not the natural product of the coca leaf or its equivalent. The Government must prove to you beyond reasonable doubt that Donald Hall distributed that cocaine which is specifically prohibited by law.
Defendant’s Requested Instruction No. Two.
. Because the issue was not raised at trial nor brought before us on appeal, we do not decide whether an instruction on the definition of “chemically equivalent” should have been given.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
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songer_sentence
|
A
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. Sam ROVETUSO, Defendant-Appellant.
No. 86-2465.
United States Court of Appeals, Seventh Circuit.
Argued April 21, 1987.
Decided July 13, 1987.
Kenneth N. Flaxman, Chicago, Ill., for defendant-appellant.
James P. Fleissner, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.
CUMMINGS, Circuit Judge.
Defendant was the unlucky subject of three separate criminal prosecutions in 1983 in the courtrooms of three different district court judges. The chronological sequence of those prosecutions engendered the present controversy and the course of events must therefore be reviewed in some detail.
On September 27, 1983, a jury found the defendant guilty of attempting to murder a federal witness to prevent his testifying in a federal case, of obstructing justice, and of conspiring to deprive the witness of his constitutional right to testify. Judge Ko-coras, to whom the case (83 CR 421) had been assigned, ordered the defendant held in custody pending sentencing in lieu of a $100,000 cash bail.
Following his conviction, the defendant began to cooperate with the government in several investigations. On October 11, 1983, he pleaded guilty before Judge Bua to two counts of mail fraud in an apparently unrelated case (83 CR 482). As a result of his cooperation, he was able to secure a reduction in his bail in the case before Judge Kocoras from $100,000 cash to $10,-000 secured by a 10 percent cash deposit and was released from custody on November 4, 1983. On the same day the defendant was released, Judge Bua entered an order that set the defendant’s bail in the case before him (83 CR 482) as the same bond set by Judge Kocoras in 83 CR 421 and provided that any bond posted in 83 CR 421 would stand as bond in 83 CR 482.
On November 30, 1983, Judge Bua sentenced the defendant in 83 CR 482 to two concurrent four-month terms of imprisonment to be served “concurrently with any sentence imposed by Judge Charles P. Ko-coras in case number 83 CR 421.” Judge Bua did not set a date on which the defendant was required to surrender and he consequently was able to remain free on bond. On December 14,1983, Judge Kocoras sentenced the defendant in 83 CR 421 to two concurrent six-year terms of imprisonment and placed him on probation for a period of five years to run consecutively to the terms of imprisonment. The defendant appealed his conviction in 83 CR 421 on December 23, 1983, and Judge Kocoras permitted him to remain enlarged on bail pending appeal.
The true confusion in this case began on December 20, 1983, when the defendant pleaded guilty before Judge Moran in yet a third case (83 CR 539) to one count of mail fraud and one count of making false statements. Like Judge Bua, Judge Moran had earlier entered an order that set the defendant’s bail in the case before him (83 CR 539) as the same bond set by Judge Kocor-as in 83 CR 421 and provided that any bond posted in 83 CR 421 would stand as bond in 83 CR 539. The defendant thus remained free on bond pending sentencing. On February 14, 1984, Judge Moran sentenced the defendant to a two-year term of imprisonment “to run concurrently with the sentence imposed in 83 CR 421 by Judge Ko-coras” and placed him on probation for a period of five years to run consecutively to the two-year term of imprisonment and to “the sentence imposed in 83 CR 421 by Judge Kocoras respecting probation.” On the day on which he was to surrender to begin serving his sentence in 83 CR 539, the defendant attempted to withdraw his guilty plea in that case. After a limited hearing, Judge Moran denied the defendant any relief and refused to permit him to remain enlarged pending appeal. The defendant had also filed a motion to reduce his sentence in 83 CR 539 pursuant to Fed.R.Crim.P. 35 which was denied on June 18, 1984. Judge Moran then again ordered the defendant to surrender and he entered the custody of the Bureau of Prisons on July 26, 1984.
Although the defendant began to serve his sentence in 83 CR 539, he did not attempt to have his bond revoked in the case before Judge Kocoras, which was being appealed. Thus despite the fact that he was in custody for purposes of 83 CR 539, he was actually still enlarged for purposes of 83 CR 421. Because the sentences in 83 CR 539 and 83 CR 482, the case before Judge Bua, were to be served concurrently with the sentence in 83 CR 421, this situation needless to say provoked a great deal of confusion within the Bureau of Prisons as to precisely which sentences the defendant was serving. The Bureau initially determined that the defendant should receive credit for time served on all three sentences. However, in response to an inquiry by prison authorities, Judge Moran issued an order clarifying his original Judgment and Commitment Order in 83 CR 539, which specified that the two-year sentence would run concurrently with the sentence imposed by Judge Kocoras in 83 CR 421. The clarifying order, dated September 18, 1984, provided as follows:
The Judgment and Commitment Order entered on February 14, 1984 is affirmed and the sentence the defendant is presently serving at this time is the sentence imposed by Judge Moran, since the sentence imposed in 83 CR 421 by Judge Kocoras is being appealed by the defendant at the present time.
As a result, in the fall of 1984 the Bureau concluded that for purposes of crediting time served the defendant was serving only the two-year sentence in 83 CR 539 and the four-month sentence in 83 CR 482 since execution of the six-year sentence in 83 CR 421 had been stayed pending appeal.
The defendant was released from prison on October 4, 1985, having completed serving the prison sentences imposed by Judge Moran in 83 CR 539 and Judge Bua in 83 CR 482. This Court had affirmed his conviction in 83 CR 421 on July 16, 1985, and the United States Supreme Court denied his petition for a writ of certiorari on January 13, 1986. United States v. Rovetuso, 768 F.2d 809 (7th Cir.1985), certiorari denied, 474 U.S. 1076, 106 S.Ct. 838, 88 L.Ed. 2d 809. The defendant then proceeded to file a Rule 35 motion with Judge Kocoras to reduce his sentence in 83 CR 421. The motion principally sought a reduction in his two concurrent six-year sentences to two concurrent four-year sentences to reflect the two years he served in federal custody in 83 CR 539. The defendant argued that it would be “manifestly unfair” to require him to serve the full six years “when neither Judge Moran nor this Court [Judge Kocoras] intended the defendant to serve consecutive sentences” (Def. Br. 3).
Judge Kocoras denied the motion in a short memorandum order. He explained that regardless of what Judge Moran intended, it was never his intention that the two concurrent six-year sentences in 83 CR 421 run currently with the two-year sentence in 83 CR 539. He further emphasized that he did not consider the matters giving rise to the sentence in 83 CR 539 in imposing the six-year sentences and that they did not serve to enhance the defendant’s punishment in 83 CR 421. He indicated that the two concurrent six-year terms of imprisonment were warranted by the seriousness of the crimes which the defendant had committed, and concluded that “[t]he sentence was a fair and proper one when imposed and it continues to be” (Def. App. 3). Accordingly, the judge ordered the defendant to surrender to begin serving his sentence in 83 CR 421 on September 26, 1986, which he presently did.
The defendant appeals Judge Kocoras’ denial of his Rule 35 motion. However, as even he concedes, our standard of review is extremely limited. The decision to grant or deny a timely filed Rule 35 motion is a matter of pure discretion. See Gaertner v. United States, 763 F.2d 787, 795 (7th Cir.1985), certiorari denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 466. A Court of Appeals has no power “to change or reduce sentences imposed within the requisite legislative limits on the ground that the sentence is too severe, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), unless the trial court failed to exercise any discretion at all in imposing sentence.” United States v. Dawson, 642 F.2d 1060, 1062 (7th Cir.1981); see United States v. Davies, 683 F.2d 1052, 1054 (7th Cir.1982). Indeed, in United States v. Kajevic, 711 F.2d 767, 771 (7th Cir.1983), this Court acknowledged that “a timely denial [of a Rule 35 motion] without reasons will be, for all practical purposes, unreviewable.”
The two concurrent six-year terms of imprisonment imposed by Judge Kocoras in 83 CR 421 were within the legislative limits. At the time of the sentencing, violations of 18 U.S.C. § 241 (conspiracy to deprive a citizen of his constitutional rights), not resulting in death, and violations of 18 U.S.C. § 1512(a) (tampering with a witness) could each be punished by not more than ten years imprisonment. And the memorandum opinion filed by Judge Kocoras in denying the defendant’s motion certainly evidences an exercise of sound discretion in considering the defendant’s arguments and ultimately reaffirming his original judgment that the seriousness of the defendant’s crimes warranted a six-year sentence.
Nevertheless the defendant maintains that Judge Kocoras abused his discretion in refusing “to correct the injustice of requiring defendant to serve his six year sentence consecutively to the two year sentence” (Def. Br. 5). The problem with this argument is that our scope of review on this appeal is limited to Judge Kocoras’ order denying the defendant’s Rule 35 motion. We do not have before us any of the sentencing orders issued by Judge Moran in 83 CR 539 or the decision of the Bureau of Prisons in the fall of 1984 to credit the defendant with time served only on the sentences imposed by Judge Moran in 83 CR 539 and Judge Bua in 83 CR 482 and not the sentence imposed by Judge Kocoras in 83 CR 421. The confusion surrounding the defendant's imprisonment was created by ambiguities in Judge Moran’s orders and the Bureau’s decision, not by Judge Kocoras’ sentencing the defendant to two concurrent six-year terms in 83 CR 421.
We begin by noting that nothing that Judge Moran did in 83 CR 539 could have had any kind of compulsory effect on Judge Kocoras’ actions in 83 CR 421. As far as the record reveals, the two cases were unrelated other than for the identity of the defendant. If Judge Moran in 83 CR 539 had at the outset sentenced the defendant to a two-year term of imprisonment to run consecutively to any sentence imposed in 83 CR 421, Judge Kocoras would not have been compelled to reduce his two concurrent six-year sentences to two concurrent four-year sentences. Similarly, the fact that Judge Moran issued conflicting interpretations of his sentencing order in 83 CR 539 in no way compelled Judge Kocoras to reduce his sentence in 83 CR 421. Although Judge Kocoras certainly could have reduced his sentence in 83 CR 421 to reflect the time the defendant served in 83 CR 539, he did not abuse his discretion by not doing so.
The defendant had numerous opportunities to challenge Judge Moran’s sentencing order in 83 CR 539 but failed to avail himself of any of them. When Judge Moran initially ordered him to surrender in March of 1984, the defendant should have filed a Rule 35(b) motion to reduce or otherwise modify his sentence on the ground that because his sentence in 83 CR 421 had been stayed pending appeal, it was impossible for him to serve his sentence in 83 CR 539 concurrently with that in 83 CR 421. It was incumbent upon the defendant, who was represented by counsel at the time, to bring to the attention of Judge Moran the status of his sentence and appeal in 83 CR 421; Judge Moran certainly had no independent obligation to ascertain this information before ordering execution of the sentence he imposed. Had he been so informed, Judge Moran could have (1) reduced his sentence in 83 CR 539 to a period of probation, (2) stayed execution of the two-year term of imprisonment pending resolution of the appeal in 83 CR 421, or (3) ordered the defendant to begin serving his sentence in 83 CR 539 regardless of the status of the sentence in 83 CR 421. In the event that Judge Moran selected option (3), the defendant could then have decided to begin serving his sentence in 83 CR 421 despite the pending appeal and moved Judge Kocoras to exonerate his bond in that case. Without some action on his part, however, to inform Judge Kocoras of his intention to begin serving his sentence in 83 CR 421, the defendant remained enlarged pending appeal in that case even though he was incarcerated in 83 CR 539 and 83 CR 482.
Even if the defendant had remained silent before surrendering in 83 CR 539, he still could have challenged Judge Moran’s sentence at the time the judge issued his clarifying order in September 1984, which indicated that the defendant was then serving the sentence which he imposed in 83 CR 539 since the sentence in 83 CR 421 was being appealed. It is certainly arguable that the effect of the clarifying order was to change what was originally a concurrent sentence to a consecutive sentence and thereby illegally increased the sentence previously imposed after the defendant had already begun to serve it in violation of the Double Jeopardy Clause. See United States v. Earley, 816 F.2d 1428 (10th Cir.1987) {en banc) (district court could not issue an order five months after defendant had already begun to serve sentence clarifying that sentence was to run consecutively to, rather than concurrently with, a preexisting federal sentence which defendant was serving at the time sentence was imposed); United States v. Niemiec, 689 F.2d 688, 692 (7th Cir.1982) (district court may amend order of commitment to reflect more clearly the judge’s intent as long as amendment does not increase sentence previously imposed but merely recites and reaffirms the sentence originally imposed); see also United States v. DiFrancesco, 449 U.S. 117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328 (1980) (acknowledging general rule that sentencing judge may not increase sentence after defendant has already begun to serve it but nevertheless holding that appellate review by the government pursuant to 18 U.S.C. § 3576 of sentence imposed upon a “dangerous special offender” does not violate Double Jeopardy Clause). The defendant could have raised this argument in either a Rule 35(a) motion which allows the correction of illegal sentences at any time or in a petition pursuant to 28 U.S.C. § 2255 which permits a defendant “to seek reduction or correction of sentence in cases where fundamental defects result in a complete miscarriage of justice.” Gaertner v. United States, 763 F.2d 787, 795 (7th Cir.1985).
Because the defendant failed to make either of these motions at the appropriate time and has now completed serving the sentence imposed by Judge Moran in 83 CR 539, we express no opinion as to the legality of Judge Moran’s clarifying order if construed as one changing the original sentence from a concurrent to a consecutive one. We therefore need not decide whether to follow Earley and similar cases. We do note, however, that in Earley the defendant was already serving a preexisting federal sentence when the district court attempted to change the sentence which it had imposed from a concurrent to a consecutive one. In contrast, in this case the defendant was not already serving a preexisting sentence; indeed, the sentence in 83 CR 421 had been stayed pending appeal, and hence it would have been impossible for the defendant to have served Judge Moran’s sentence concurrently with Judge Kocoras’.
The defendant had yet another opportunity to challenge the sentencing order in 83 CR 539 when the Bureau of Prisons, in reliance on Judge Moran’s clarifying order, made its decision to credit the defendant with time served only in 83 CR 539 and 83 CR 482, and not in 83 CR 421. The defendant could have attempted to obtain judicial review of the Bureau’s decision, but once again failed to do so.
Judge Moran may well have intended for his sentence in 83 CR 539 to be served concurrently with the sentence imposed by Judge Kocoras in 83 CR 421. Unfortunately, his actions were inconsistent with that intent, and the defendant consistently failed to initiate timely steps to secure judicial review of Judge Moran’s admittedly ambiguous and conflicting pronouncements. In any event, Judge Moran’s intentions are no longer relevant since all that is before us now is Judge Kocoras’ order denying the defendant’s Rule 35 motion to reduce the sentence in 83 CR 421. Judge Kocoras clearly expressed his intent that that sentence was not to be served concurrently with any other and that it was in no way dependent upon either the facts of or the punishments imposed in the unrelated cases before Judge Moran and Judge Bua. Regardless of whatever deficiencies there might have been in Judge Moran’s sentence, we cannot say that Judge Kocoras abused his discretion in refusing to reduce his sentence to reflect or correct those deficiencies. The district court’s order is affirmed.
. The defendant advanced his continued cooperation with the government as an additional ground for reducing his sentence in 83 CR 421. In view of the extremely narrow scope of appellate review of a denial of a Rule 35 motion, the defendant at oral argument indicated that he was not pursuing this argument on appeal.
. 18 U.S.C. § 1512(a) was amended in 1986 to increase the penalties for killing or attempting to kill a federal witness.
. The defendant apparently did file a Rule 35 motion with Judge Moran which was summarily denied on June 18, 1984. The record, however, does not reveal the grounds raised by the motion nor any reasons for its denial.
. The fact that the defendant remained enlarged pending appeal in 83 CR 421 was not totally without benefit to him. When he was released from prison after completing his two-year sentence in 83 CR 539 on October 4, 1985, he was able to remain out of custody until he was finally ordered to surrender by Judge Kocoras in 83 CR 421 on September 23, 1986.
. The government suggests that Judge Moran originally imposed sentence on the defendant in 83 CR 539 based on the inaccurate expectation that there would be no appeal in 83 CR 421. It argues that this expectation was legitimate in view of the fact that the defendant had begun to cooperate with the government and had entered guilty pleas in 83 CR 539 and 83 CR 482. When Judge Moran later learned that this expectation was not correct, he was, according to the government, entitled to clarify his judgment and commitment order to the effect that the sentence he imposed in 83 CR 539 would not be served concurrently to the one in 83 CR 421, which had been stayed pending appeal.
The defendant counters that Judge Moran could not have had a legitimate expectation of no appeal in 83 CR 421 since the defendant had filed his notice of appeal in that case on December 23, 1983, almost two months prior to the sentencing in 83 CR 539. However, there is no indication that Judge Moran had knowledge of the appeal and as was discussed in the text, it was the defendant's obligation to so inform him.
. Counsel for the defendant has provided us with a copy of a letter written by Judge Moran to the defendant dated April 15, 1987, which once again provides that his "intention and expectation at the time [he] imposed a custody sentence in [the defendant’s] case was that it would be served concurrently with the sentence imposed by Judge Kocoras in the case before him."
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_casetyp2_geniss
|
G
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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.
There are two main issues in this case. The first issue is economic activity and regulation - misc economic regulation and benefits - federal consumer protection regulation (includes pure food and drug, false advertising). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
The RATH PACKING COMPANY, a corporation, Plaintiff, Counter-Defendant and Appellant, v. M. H. BECKER, as Director of the County of Los Angeles Department of Weights and Measures, Defendant, Appellee and Cross-Appellant, C. B. Christensen, as Director of Agriculture of the State of California, Intervenor, Appellee and Cross-Appellant. The RATH PACKING COMPANY, a corporation, Plaintiff and Appellant, v. Joseph W. JONES, as Director of the County of Riverside Department of Weights and Measures, Defendant, Appellee and Cross-Appellant.
Nos. 73-2481, 73-2482, 73-3092, 73-2496 and 73-3180.
United States Court of Appeals, Ninth Circuit.
Oct. 29, 1975.
Certiorari Granted April 19, 1976.
See 96 S.Ct. 1663.
Arnold K. Graham, Deputy County Counsel (argued), Los Angeles, Cal., for M. H. Becker.
Allan J. Goodman, Deputy Atty. Gen. (argued), Los Angeles, Cal., for C. B. Christensen.
Loyal E. Keir, Deputy County Counsel (argued), Riverside, Cal., for Joseph W. Jones.
Dean C. Dunlavey (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., for Rath Packing Co.
Before BROWNING and TRASK, Circuit Judges, and RICH, Judge.
The Honorable Giles S. Rich, Judge, United States Court of Customs and Patent Appeals, sitting by designation.
OPINION
RICH, Judge:
These suits were brought by Rath Packing Company (hereinafter “Rath”) to enjoin the enforcement of certain California statutes and regulations pertaining to the labeling by weight of packaged foods at retail, and for a declaration that the federal Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq., and a regulation promulgated thereunder, 9 CFR 317.2(h)(2), preempt these California statutes and regulations. They were consolidated for decision in the district court and on appeal.
Rath is a nation-wide processor and seller of meat products, including bacon, and maintains a meat-packing establishment at Vernon, California, which is subject to federal inspection under the Wholesome Meat Act and 9 CFR 302.1 as an establishment in which “any products of * * * carcasses of livestock are * * * prepared for transportation or sale as articles of commerce, which are intended for use as human food.” Becker and Jones are the Directors of the Departments of Weights and Measures of Los Angeles and Riverside Counties, California, respectively. They are responsible for the actual enforcement of the State weights and measures laws in their counties. Intervenor Christensen is the Director of Agriculture of the State of California.
Jurisdiction in the district court was based on 28 U.S.C. § 1331(a), as it was alleged that a case or controversy arising under the laws of the United States involving more than $10,000 was presented. We have jurisdiction of this appeal under 28 U.S.C. § 1291.
The district court, in a memorandum and order reported at 357 F.Supp. 529 (C.D.Cal.1973), granted in part the relief requested, and all parties appealed the determinations adverse to them.
This case is a companion to General Mills, Inc., et al. v. Jones, 530 F.2d 1317, decided concurrently herewith. Much of the discussion in this opinion is applicable to the General Mills case as well.
Background
This case concerns the packaging and weighing of bacon. In order to understand the issues, a brief description of the properties of bacon and how it is packed and weighed is necessary.
The weighing and packaging of bacon at the Rath plant takes place under internal Rath procedures which have been submitted to an official of the United States Department of Agriculture (USDA). After the pickled and smoked pork bellies come from the bacon press, where they are squared into uniform rectangular shapes, they are sliced by a machine, which distributes the slices in “drafts” of approximately one pound weight. An operator places each draft on an insert, or “tux”, board, which is a hardboard coated either with wax or with polyethylene. The drafts are then passed to a scaling station, where they are weighed and the operator either adds or removes bacon to bring the weight within a predetermined target limit. After scaling the bacon is passed to a tux overwrap machine, which inserts the bacon into a carton and seals it. This carton is not hermetically sealed and the bacon in it does lose some moisture to the atmosphere over time. Although Rath now does use some hermetically sealed bacon containers, this packing method is agreed to be in accordance with good distribution practices. Once the bacon is weighed at the scaling station, it is not weighed again before it leaves the Rath plant, an average of 4 days, never more than 8 or 9 days, later. In determining the pass zone Rath follows the USD A procedure of subtracting from the actual weight of the draft and the tux board on which it lies the weight of a dry tux board. This method uses a “dry tare.” There is no evidence that Rath has violated federal weight standards in any way.
The federal program for regulation of net weight labeling of meat and meat food products exists in part under the Wholesome Meat Act of 1967, supra. The Act added the concept of “misbrand-ing” to the prior federal meat inspection laws. 21 U.S.C. § 601(n) provides in relevant part:
(n) The term “misbranded” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances:
* * * * * ^
(5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (B) of this sub-paragraph (5), reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary [of Agriculture];
* * * * * *
In 9 CFR 317.2(h)(2) the Secretary purported to implement § 601(n)(5):
(2) The statement as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large.
In the supermarket the California inspectors employed a different weighing method, using a “wet tare.” The California procedure is set forth in detail in 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5. Briefly, the California inspectors follow a twelve-step procedure set forth in Section 2933.3 of the regulations:
(1) determine the number of packages in the lot to be sampled;
(2) from a table in the regulation, determine the total package sample size (e. g., 15 packages out of a lot of 300);
(3) from the same table, determine the tare sample size (e. g., 2 packages out of a lot of 300);
(4) record the gross weight of each tare sample package;
(5) remove the usable contents from each tare sample, weigh the used, empty container, and compute the average tare Weight;
(6) weigh the remaining packages in the package sample and record their weights, determining the amount of error from labeled weight for each package;
(7) [not applicable to bacon];
(8) calculate the preliminary total error for the sample, and determine the arithmetical average error;
(9) calculate the range of error for each sub-group of the package sample;
(10) determine whether any unreasonable errors exist, and eliminate from further computations all samples whose errors exceed the preliminary average error in underweight situations by more than the amounts set forth in tables in the regulations; if the number of unreasonable errors exceeds a certain set figure for each sample size, further action, including the issuance of off-sale orders, may be undertaken.
(11) recalculate the total and average error of the sample excluding the unreasonable errors;
(12) “(a) If the total error as obtained from the sample is plus and is less than the value shown in Table III for the corresponding range and sample size, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.
“(b) If the total error obtained from the sample is less than the above-determined value, and the error is minus, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken the lot shall be passed. If additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.” [Sec. 2933.3.12.]
If an inspector cannot pass the lot based on this sampling technique or after retesting, he then may order the lot off-sale under the provisions of California Business and Professions Code § 12211:
Each sealer shall, from time to time, weigh or measure packages, containers or amounts of commodities sold, or in the process of delivery, in order to determine whether the same contain the quantity or amount represented and whether they are being sold in accordance with law.
# # * sif * #
Whenever a lot or package of any commodity is found to contain, through the procedures authorized herein, a less amount than that represented, the sealer shall in writing order same off sale and require that an accurate statement of quantity be placed on each such package or container before the same may be released for sale by the sealer in writing. The sealer may seize as evidence any package or container which is found to contain a less amount than that represented.
Evidence was adduced at the trial from various California officials, including Becker, that the county departments do not recognize variations in net weight that result from water loss during good distribution practice. Mr. Cervinka, a statistician employed by the California Department of Agriculture, testified on direct examination as an expert for Christensen that Art. 5 of the regulation, described above, is a statistically valid procedure. On cross-examination he indicated that Art. 5 does not make any distinction between products that lose water and those that do not, nor does it make provision for any weight reductions during the course of handling. On this and other evidence the district court concluded that Art. 5 uses “absolute” weight as determined by statistical methods as its measure of compliance and makes no reference in describing the steps of the weighing and calculating process to reasonable variations from label weight caused by “loss * * * of moisture during the course of good distribution practice.” The district court’s fact findings have substantial evidentia-ry support and are not clearly erroneous. F.R.Civ.P. 52(a). Becker, Christensen, and Jones do not urge error in the district court’s construction of Art. 5.
Procedural History
During the period September 1971 to March 1972 inspectors under the supervision of Becker and Jones visited supermarkets in Los Angeles and Riverside Counties and weighed packages of Rath bacon to determine compliance with the State statute and regulations concerning net weight labeling. Becker’s representatives ordered approximately 84 lots of bacon off sale for short weight; Jones ordered nearly 400 packages of Rath bacon off sale in the period September 29 to December 30, 1971, for the same reason.
On February 17, 1972, the Riverside County Counsel brought an action in the name of the People against Rath in the Superior Court for Riverside County for an injunction under Cal.Civ.Code § 3369 and for civil penalties under Cal.Bus. and Prof.Code § 17536, alleging that Rath had committed acts of unfair competition in violation of Cal.Bus. and Prof. Code § 17500 by distributing for sale in Riverside County supermarkets the packages of bacon that Jones’ representatives had ordered off sale. On March 1, 1972, the Los Angeles County Counsel filed a similar action against Rath in the Superior Court for Los Angeles County.
Rath removed both actions to federal district court within a week thereafter; but on March 20, 1972, the district court remanded the actions to the State courts, finding, at least with respect to the Riverside action, that there was no diversity of citizenship and that “[n]o substantial federal question is presented on the face of the pleadings.”
Meanwhile, on March 17, 1972, Rath filed two actions in federal district court, one against the People and Becker, the other against Jones. Rath requested declarations that the California statutes and regulations impose labeling standards on meat food products prepared by Rath that are in addition to or different than the standards of the Wholesome Meat Act of 1967, specifically 21 U.S.C. § 601(n)(5) and 9 CFR 317.2(h)(2) and that California could not impose weight labeling requirements on Rath meat food products after they left the Rath plant. Rath also requested injunctions against the enforcement by Becker and Jones of labeling requirements in addition to or different than those in the Act and against the ordering off-sale or otherwise preventing the sale of Rath products for failure of the products to bear an accurate label in terms of net weight after they have left Rath’s plant. Becker, Jones, and Christensen counterclaimed for the same relief sought by the State in the state court actions.
After the remands, on March 30, 1972, Rath answered the state court complaints and filed cross-complaints seeking the same relief, in virtually the same language, as Rath sought in federal court. In July 1972 Christensen intervened in both the state and federal court litigations.
Becker filed in the district court motions requesting the court either to abstain from deciding the federal court action or to stay the federal action pending final determinations in the state court actions. The district court denied these motions in May 1972. On November 14, 1972, the superior court in the Riverside action dismissed Rath’s cross-complaint; Rath appealed. On the very next day, Christensen and Becker moved the district court to dismiss Rath’s action or to stay it pending decision on Rath’s state appeal. The district court denied the motions, and this court, on Christensen and Becker’s petition for a writ of prohibition, declined to disturb the district court’s assumption of jurisdiction.
On April 3, 1973, the district court, after a trial on.the merits of Rath’s action against Becker and on cross-motion for summary judgment in the action against Jones, entered judgment declaring Cal.Bus. and Prof.Code § 12211 and 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5 to be preempted by federal law and enjoining their enforcement. In the course of its Memorandum the court held that 9 CFR 317.2(h)(2) was invalid, and that thus the sole federal labeling standard was “accurate” weight. The court also held that accurate weight labeling standards could be applied to packages of meat and meat food products at the retail level. Cross-appeals were taken to this court.
The Riverside action continued, and in January 1974, while Rath’s first appeal was still pending in the California District Court of Appeal, the superior court entered summary judgment on the complaints of Jones and Christensen against Rath; Rath appealed again. In an unreported decision in April 1974 on Rath’s first appeal, the California appellate court reversed the dismissal of Rath’s cross-complaint against Jones, holding that the federal court’s judgment was res judicata on the issue of the validity of § 12211 and Art. 5 (to the extent that it implemented § 12211). On Rath’s second appeal, in December 1974, the appellate court reversed the grant of summary judgment on the complaints and remanded the case to the Riverside superior court for trial, holding that there existed issues of fact that required trial. People v. Rath Packing Company, 44 Cal. App.3d 56, 118 Cal.Rptr. 438 (1974). The appellate court also explained further the basis of its decision on Rath’s first appeal, holding that the effect of the federal court judgment was to preclude relitigation of the narrow issue of the preemption of § 12211, and its implementation in Art. 5, by the Wholesome Meat Act. The appellate court held, 118 Cal. Rptr. at 446 n.6, that Art. 5 is not unconstitutional.
Although the record does not contain any notice of the proceedings in the Los Angeles superior court action, we are informed by Rath’s reply brief that in February 1974 the Los Angeles court gave res judicata effect to the final judgment on the preemption issue and decided in Rath’s favor the issues of constitutionality and whether Becker’s ordering of Rath’s bacon off sale complied with state law. An appeal from this judgment is pending.
I.
Becker, Jones, and Christensen contend that the district court lacked jurisdiction of the subject matter before it, and, in the alternative, that the principles of abstention and comity required the court to stay its hand until the state court actions had proceeded to judgment. We reject both contentions.
A.
The question of subject matter jurisdiction may be raised by the parties at any time or by the court sua sponte. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1938); F.R.Civ.P. 12(h)(3). Becker et al. first contend that the declaratory judgment actions brought by Rath are nothing more than attempts to get collateral review of the remands to state court of the actions brought against Rath by the People which Rath had removed to the district court. 28 U.S.C. § 1447, provides:
§ 1447. Procedure after removal generally.
(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise * * *.
Their second contention is that Rath’s claim for declaratory and injunctive relief in the district court is in reality a defense to the state court actions, and, as such, cannot form a basis for federal question jurisdiction under 28 U.S.C. § 1331.
After the institution of Rath’s federal action Becker at al. presented these contentions to this court by way of a petition for a writ of prohibition, Becker et al. v. Real, No. 72-3037, which the court, ELY and HUFSTEDLER, Circuit Judges, denied. We find no reason to depart from that decision.
Federal question jurisdiction is determined by the federal district court solely from the face of plaintiff’s complaint. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Removability cannot be created by defendant pleading a counter-claim presenting a federal question under 28 U.S.C. § 1331. See 1 Barron & Holtzoff, Federal Practice and Procedure (Wright Ed.) § 102; United Artists Corp. v. Ancore Amusement Corp., 91 F.Supp. 132 (S.D.N.Y.1950). Thus, Rath’s answer and cross-complaint in the state court, raising its claim for declaratory and injunctive relief under federal law, were not before the district court when it remanded the state court actions and do not raise any issues necessarily adjudicated by the court in deciding to remand. The decision of the district court that the case does not invoke the federal jurisdiction and must be remanded precludes further litigation of the issue of the forum in which the removed case is to be litigated. Missouri Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556, 583, 16 S.Ct. 389, 40 L.Ed. 536 (1896). The decision of the district court to remand has no bearing on the merits of the underlying claims. Since the district court did not make any decision with respect to the propriety of a federal forum for Rath’s claims, we cannot say that the maintenance of Rath’s claim in federal court works a circumvention of 28 U.S.C. § 1447(d). Cf. Chandler v. O’Bryan, 445 F.2d 1045, 1057 (10th Cir. 1971). Rath is not contending that the remand orders were erroneous, but only that it has a right to a federal forum for its alleged federal claims.
The argument that Rath’s claims are not within the federal question jurisdiction, it not being denied that there is no diversity of citizenship, takes its roots in the statement of the Supreme Court in Public Service Commission v. Wycoff, 344 U.S. 237, 248, 73 S.Ct. 236, 242, 97 L.Ed. 291 (1952):
Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law * * * (emphasis added [by the Court]).
The doubt that the Court expresses is still with us, e. g., C. Wright, Law of Federal Courts § 18, at 62 (2d Ed. 1970).
In order to appreciate the Wycoff case we must first look to the jurisdictional background of the Declaratory Judgment Act, 28 U.S.C. § 2201. The Act is procedural only, creating a new federal remedy without expanding the jurisdiction of the federal courts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). “ ‘Jurisdiction’ means the kinds of issues which give right of entrance to federal courts.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950). The Wycoff “test” quoted supra has its origins in Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511 (1894), where the Court said, “a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.” Furthermore, the complaint of the declaratory plaintiff must present a federal question “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914).
In Wycoff the complainant brought an action for declaratory judgment against the Utah Public Service Commission, requesting a finding that the business conducted by complainant in carrying goods between points in Utah was interstate commerce (and thus not subject to regulation by the Commission). The principal concern of the Court was the nature of the controversy presented, 344 U.S. at 244, 73 S.Ct. at 240:
A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and the counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied [by the Court].)
From this the Court concluded that “this dispute has not matured to the point where we can see what, if any, concrete controversy will develop.” 344 U.S. at 245, 73 S.Ct. at 241. In the portion of Wycoff quoted three paragraphs above, the Court was applying its concern that the controversy was not ripe for adjudication by pointing out a declaratory plaintiff may not create a controversy by seeking to have a federal court adjudicate federal defenses he might assert in a proceeding before a state court or administrative tribunal which is not ripe, but which is merely threatened or impending.
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. * * *. (Emphasis added.)
Another aspect of the matter was aired in Chandler v. O’Bryan, supra. O’Bryan brought a libel action in Oklahoma state court against Chandler, a United States District Judge, on statements made by Chandler to a newspaper accusing O’Bryan of bribing judges of the Oklahoma Supreme Court. Chandler removed the action to federal district court; but the district court held that the acts alleged in the complaint were not done in performance of Chandler’s official duties as a federal judge, nor were they done under color of judicial office, and remanded the case to the state court for lack of a federal question, there being no diversity of citizenship. It is settled that Chandler’s judicial immunity defense arises under federal law. Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). A verdict for O’Bryan was returned in the state court. Chandler then filed a declaratory judgment action in federal court seeking to have the state libel judgment enjoined and expunged, alleging his federal judicial immunity claim. The district court granted relief to Chandler, 311 F.Supp. 1121 (W.D.Okl.1969), but the 10th Circuit (by a panel of three judges of the 8th Circuit) reversed.
The court found Wycoff directly applicable, and held that Chandler was seeking a separate federal adjudication of a matter which was “in reality in the nature of a defense” to the state court libel action, which was based solely on state libel law and raised no federal question itself. The action was dismissed for lack of federal jurisdiction.
The instant case is different. While it is true that judgment in Rath’s favor affects the results of the,Los Angeles and Riverside actions, we cannot say that Rath’s action is premature or that Rath’s claim is merely a defense to the state court actions. The ordering off-sale of Rath’s products in September 1971 and afterward and the upward adjustment of the pass range at the sealing station at Rath’s plant, increasing the overpack of bacon necessitated by California weighing procedures, it was stipulated below, caused Rath a loss of more than $10,000. The off-sale orders themselves are sufficient State action to create an actual controversy between Rath and the state weights and measures officials. See Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 508, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). The present controversy was not created by the institution of the state court actions against Rath, but arose independently thereof by virtue of the off-sale orders.
Unlike Chandler, Rath’s claims have vitality in the absence of the litigation in state court; Rath had the right to a federal forum before the institution of the state court actions. Chandler’s federal claim was purely in the nature of a defense to the libel action. Brought without reference to the underlying state court proceeding, Chandler’s claim would be a useless gesture: no one would care whether Chandler acted under the protection accorded by the courts to his office if O’Bryan had refrained from suing him. That Rath’s claim is or can be the basis for a defense to the state court actions states a mere truism; the test is whether Rath has created a federal controversy where none existed or is seeking an adjudication of a claim which is essentially meaningful only when pleaded as a defense to the particular pending state court actions. We find neither factor present and consider that Rath has stated claims which are within the federal jurisdiction conferred on the district court by 28 U.S.C. § 1331.
The Commission has plainly indicated an intent to enforce the Act; and prohibition of the statute is so broad as to deny the United States the right to ship at reduced rates, unless the Commission first gives its approval. The case is, therefore, quite different from Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291, where a carrier sought relief in a federal court against a state commission in order “to guard against the possibility,” id., 344 U.S. at page 244, 73 S.Ct. at page 240, that the Commission would assume jurisdiction. Here the statute limits transportation at reduced rates unless the Commission first gives approval. The controversy is present and concrete — whether the United States has the right to obtain transportation service at such rates as it may negotiate or whether it can do so only with state approval.
B.
We also hold that considerations of comity and abstention did not require the district court to relinquish jurisdiction.
Comity is a principle of long standing:
We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in. common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure.
* * *• * * *
The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose. Ponzi v. Fessenden, 258 U.S. 254, 259-60, 42 S.Ct. 309, 310, 66 L.Ed. 607 (1921).
This circuit has defined the rule of comity as “merely of recognizing exclusive jurisdiction in the court first acquiring jurisdiction of any action.” Gregg v. Winchester, 173 F.2d 512, 513 (9th Cir. 1949). Under these rules and in the present circumstances, the principle of comity does not suggest that the district court should have declined to hear Rath’s claims. The subject matter of the litigation before us consists of the federal questions raised by Rath in its complaint. These federal questions were first taken into the control of a court when Rath filed its complaint in the district court on March 17, 1972. No state court could have acquired jurisdiction over this subject matter until Rath answered and filed its cross-complaints in the state courts on March 30, 1972. Our conclusion is reinforced by the actions of the District Court of Appeal in the Riverside action twice giving res judicata effect to the federal district court judgment. If, as Becker and Christensen contend, the only matter preventing the first Riverside judgment, dismissing Rath’s cross-complaint against Jones, from being given preclusive effect as a final judgment is Cal.Code of Civ.Proc. § 1049, the California appellate court would not have directed the trial court to abandon its position and to follow the federal judgment, which, since it had been appealed, was just as “final” as the Riverside judgment if evaluated under California law. We do not see here the federal-state conflict that the comity doctrine seeks to avoid. The district court acquired jurisdiction over the federal question prior to the state courts, and very scrupulously avoided deciding even tangentially the constitutionality of the California statutes and regulations or whether the actions of the inspectors were in compliance with state law. The state courts have not questioned the right of the district court to take the action it did and held the federal judgment entitled to preclusive effect in the state courts on the particular issues litigated in the federal courts.
In applying the abstention doctrine a federal district court has discretion in declining to exercise or postponing the exercise of jurisdiction it already has in deference to a state court resolution of underlying issues of state law. Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Abstention is appropriate only where the issue of state law is uncertain, Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965), and where “the delay and expense to which the application of the abstention doctrine inevitably gives rise” can be justified. England v. Board of Medical Examiners, 376 U.S. 411, 418, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). However, abstention is not automatic whenever a question of state law may be involved. As the Court said in Baggett v. Bullitt, 377 U.S. 360, 376-77, 84 S.Ct. 1316, 1326, 12 L.Ed.2d 377 (1964), a case in which the Court considered abstention to be unnecessary:
In the bulk of abstention cases in this Court, * * * the unsettled issue of state law principally concerned the applicability of the challenged statute to a certain person or a defined course of conduct, whose resolution in a particular manner would eliminate the constitutional issue and terminate the litigation.
This statement reflects the judicial policy of avoiding the adjudication of federal constitutional questions unless they are ripe and are squarely presented by the record.
“The basic question involved in [federal preemption] cases, however, is never one of interpretation of the Federal Constitution but inevitably one of comparing two statutes.” Swift & Co. v. Wickham, 382 U.S. 111, 120, 86 S.Ct. 258, 264, 15 L.Ed.2d 194 (1965). Thus we do not have a situation where a state law interpretation by a state court may eliminate a federal constitutional question. Cf. Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). There is no contention by Becker, Jones, or Christensen that California law is unclear or ambiguous or that the construction of California law in the state courts will obviate a. decision on Rath’s federal preemption claim. The California statutes and regulations apply to Rath without question. We think this case is akin to Harman v. Forssenius, supra, in which the Court said: “If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal * * * question, it is the duty of the federal court to exercise its properly invoked jurisdiction. Baggett v. Bullitt, 377 U.S. 360, 375-379 [84 S.Ct. 1316, 1324-1326, 12 L
Question: What is the second general issue in the case, other than economic activity and regulation - misc economic regulation and benefits - federal consumer protection regulation (includes pure food and drug, false advertising)?
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
|
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 or not there was any amicus participation before the court of appeals.
UNITED STATES of America, Plaintiff-Appellant. v. Terry Wayne DENSON, Stephen Orlando and Joseph James Janish, Defendants-Appellees. In re UNITED STATES of America, Petitioner.
Nos. 78-2102, 78-2508.
United States Court of Appeals, Fifth Circuit.
Feb. 5, 1979.
Rehearing En Banc Granted March 30, 1979.
Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., Joel L. Selig, Dept, of Justice, Washington, D.C., for U. S. in 78-2102.
Robert C. Bennett, Houston, Tex., for Denson.
Michael Ramsey, Houston, Tex., for Orlando.
Michael A. Andrews, Houston, Tex., for Janish.
E. W. Barnett, B. J. Bradshaw, Leroy Jeffers, Houston, Tex., Tom Mills, Jr., Dallas, Tex., amicus curiae, for Nat’l Assn, of Criminal Defense Lawyers, Inc.
J. A. Canales, U. S. Atty., Houston, Tex., Dennis J. Dimsey, Drew S. Days, Asst. Atty. Gen., Civil Rights Div., John E. Huerta, Brian K. Landsberg, Dept, of Justice, Washington, D.C., for U. S. in both cases.
Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.
JAMES C. HILL, Circuit Judge:
In No. 78-2508 the Government petitions for a writ of mandamus ordering the District Court to correct allegedly illegal sentences entered in this action on May 19, 1978. In No. 78-2102 the Government has filed a notice of appeal in an effort to challenge the same allegedly illegal sentences through the alternative procedure of a direct appeal. The substantive issue presented is whether 18 U.S.C.A. § 3651 authorizes a suspended sentence and probation for a conviction under 18 U.S.C.A. § 241 in a case in which the victim of the constitutional deprivation was killed. The procedural issue presented is whether a direct appeal or a petition for a writ of mandamus is the appropriate vehicle for the Government to challenge the sentences. After careful consideration of the record, the litigants’ briefs, the briefs of amici curiae, the litigants’ oral arguments, and the applicable law, we dismiss the appeal as improper and deny the petition for a writ of mandamus.
I.
We need not recount the evidence of this horrible crime adduced at this trial or at the prior state proceedings, since the issues presented here are legal and procedural. The relevant procedural history which we need consider to resolve the issues before us is not disputed. On October 20, 1977, a federal grand jury returned a four-count indictment charging former Houston police officers Terry Wayne Denson, Stephen Orlando, Joseph James Janish, and Louis Glenn Kinney with violations of 18 U.S.C.A. §§ 241, 242, and 371. Count One of the indictment charged Denson, Orlando, Janish, and Kinney with conspiring to injure, oppress, threaten, and intimidate Joe Luna Torres, Jr., in the free exercise of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. § 241. Count One averred that on May 6, 1977, Janish, Denson, Kinney, and Orlando struck Torres while he was handcuffed, and that Denson pushed Torres into the Buffalo Bayou in Houston. This Count further alleged that the conspiracy resulted in Torres’ death. Count Two of the indictment charged that Denson, Orlando, Janish, and Kinney, while acting under color of law, willfully struck Torres, thereby depriving him of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. § 242. Count Three alleged that Denson, aided and abetted by Orlando, Janish, and Kinney, willfully assaulted Torres by pushing him into the Buffalo Bayou, thereby depriving him of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. §§ 2 and 242. Count Three further asserted that this act resulted in Torres’ death. Count Four charged that Denson, Orlando, and Kinney conspired to violate 18 U.S.C.A. § 1510 by preventing one Carless E. Elliott from communicating information about violations of 18 U.S.C.A. §§ 241 and 242 to an agent of the Federal Bureau of Investigation, in violation of 18 U.S.C.A. § 371. On October 28, 1977, the Defendants entered pleas of not guilty to the charges against them. A jury trial commenced on January 23, 1978. On January 31, 1978, the District Court granted defendant Kinney’s motion for a severance. On February 8, 1978, the jury found Defendants Denson, Orlando, and Janish guilty on Counts One and Two of the indictment and not guilty on Counts Three and Four.
Sentencing was held on March 28, 1978. On Count One of the indictment, the District Court sentenced each Defendant to ten years’ imprisonment, suspended execution of that sentence, and ordered the Defendants placed on supervised probation for five years. On Count Two, the District Court sentenced each Defendant to one year’s imprisonment. The District Court ordered the sentences on Counts One and Two to be served consecutively. After the sentence was announced, the following exchange took place between counsel for the United States and the District Court:
Mr. McDonald: If I may be heard, there is some question about whether or not a probated sentence—
The Court: I have resolved that question to my own satisfaction.
We will be in recess.
On April 5, 1978, the Government filed a motion to correct sentence. In this motion, the Government contended that the District Court’s orders suspending execution of its ten-year sentences and placing the Defendants on probation exceeded its authority under 18 U.S.C.A. § 3651. The Defendants filed a response to the Government’s motion on April 11, 1978. In its memorandum and order dated April 17, 1978, the District Court denied the Government’s motion. The District Court’s reasoning is set forth in the following paragraph taken from its opinion:
The language ‘imprisonment (or imprisoned) for any term of years or for life’ in 18 U.S.C. § 241 is identical to the language in 18 U.S.C. § 1111 (defining second degree murder), id. § 2031 (defining rape), and id. § 1201 (defining kidnapping). The Administrative Office of the United States Courts reports that, nationwide, 4 convicted of second degree murder, 33 convicted of rape, and 6 convicted of kidnapping in 1977 received probation. Annual Report of the Director, Administrative Office of the United States Courts, 1977. In 1976, those receiving probation after conviction of these offenses were 2 (second degree murder), 20 (rape), and 5 (kidnapping), id, 1976. In 1975, the numbers were 3 (second degree murder), 28 (rape), and 10 (kidnapping). Id., 1975. Thus throughout the nation, the Federal Judiciary has interpreted the language ‘imprisonment (or imprisoned) for any term of years or for life’ to be consistent with the language of 18 U.S.C. § 3651 authorizing the granting of probation. Probation is prohibited when a punishment of death or life imprisonment is mandatory. See United States v. Woods, 484 F.2d 127, 139 (4th Cir. 1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875.
On May 17, 1978, the Government filed a notice of appeal from the April 17, 1978, order denying its motion to correct sentence. The notice of appeal indicated that the Government also intended to seek relief by way of a writ of mandamus.
On May 19, 1978, the District Court entered Judgment and Probation/Commitment Orders for Defendants Denson, Orlando, and Janish. These Orders effectuated the sentences which had been announced from the bench on March 28, 1978. The District Court also issued a second memorandum and order, the asserted purpose of which was
to set forth upon the record the reasons which stem from the unprecedented procedural posture of this case, for the order, which is a part hereof, staying, to the extent that this court has power to stay, the running of all time periods pertaining to an appeal on the merits in this case until such time as the question of the validity of the sentence of this court has been finally determined.
In this Memorandum and Order, the District Court set forth an additional basis for the sentences it had imposed. After summarizing the procedures followed and the arguments of the litigants, the District Court stated:
In an attempt to depoliticize what has become an almost intolerable situation of attempts to interfere with the independence of the court, this court has not heretofore articulated the most cogent reason for the sentences imposed. That reason is that the Government entered into a plea agreement with one of the former police officers not on trial in this case that if he would testify against those on trial here, he would be permitted to plead guilty to the same actions upon which the jury found these Defendants guilty under a different statute carrying a maximum penalty of one years’ [sic] imprisonment and further that in his case the Government would recommend probation.
On May 23, 1978, the Government filed an amended notice of appeal from the order denying its motion to correct sentence and from the orders of probation entered on May 19, 1978. On May 30, 1978, Defendants Denson, Orlando, and Janish filed notices of appeal from the judgments entered against them. On July 14, 1978, the Government filed its petition for a writ of mandamus. This Court stayed the Defendants’ appeal pending the outcome of the Government’s attacks on the sentences.
II.
We first consider whether 18 U.S.C.A. § 3651 authorizes a suspended sentence and probation for these convictions under 18 U.S.C.A. § 241.
A.
Section 3651 authorizes federal courts to suspend imposition or execution of sentences only “[u]pon entering a judgment of conviction of any offense not punishable by death or life imprisonment.” Webster’s Third International Dictionary (16th ed. 1971) and Black’s Law Dictionary (Rev. 4th ed. 1968) both define “punishable” as meaning deserving of, liable of, or capable of being punished by law or right. See also Annotation, 35A Words and Phrases 171 (1963). The ordinary plain meaning of Section 3651, then, is that federal courts are without authority to suspend the imposition or execution of punishment and to grant probation to defendants, such as these Defendants, who are convicted of offenses for which death or life imprisonment may be imposed as a sentence.
The meaning of the phrase “any offense not punishable by death or life imprisonment” in Section 3651, in our view, “is so self-evident that it hardly admits of argument.” United States v. Watkinds, 6 F. 152, 161 (C.C.D.Or.1881). This case is appropriate for application of the, “plain meaning” rule of statutory interpretation— “a most basic principle of statutory construction.” Tidewater Oil Co. v. United States, 409 U.S. 151, 178, 93 S.Ct. 408, 424, 34 L.Ed.2d 375 (1972) (Stewart, J., dissenting). The United States Supreme Court explained this rule in one of its early cases:
Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of words. in search of an intention which the words themselves did not suggest.
United States v. Wiltberger, 18 U.S. 76, 96, 5 Wheat. 76, 5 L.Ed. 37 (1920). See generally Raven v. Panama Canal Co., 583 F.2d 169 (5th Cir. 1978); Barbee v. United States, 392 F.2d 532 (5th Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1849, 20 L.Ed.2d 855 (1968). More recently, the Supreme Court has said of this rule: “[tjhere is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct. 852, 857, 15 L.Ed.2d 827 (1966), quoting, United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 534, 84 L.Ed. 1345 (1940). We believe that the District Court has “depart[ed] from the plain meaning of [the] words [of Section 3651] in search of an intention which the words themselves [do] not suggest.” United States v. Wiltberger, 18 U.S. at 96. We further believe that there is no ambiguity in the language of the statute that would justify such a departure. Nor do we find anything in the legislative history of the statute or in the general theory of probation which would warrant disregarding the natural meaning of the statutory language.
There is nothing in the legislative history of Section 3651 to suggest that its plain meaning is to be disregarded. For many years there were no federal statutes governing probation. Federal courts frequently “exercised a form of probation either by suspending sentence or by placing the defendants under state probation officers or volunteers.” United States v. Murray, 275 U.S. 347, 354, 48 S.Ct. 146, 148, 72 L.Ed. 309 (1928). However, in Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916) (the “Killitts” case), the Supreme Court held that federal courts had no authority to suspend sentence. In response to this decision, Congress in 1925 passed the Federal Probation Act, 18 U.S.C.A. §§ 3651-3656.
The purpose of the Act was explained in United States v. Murray, 275 U.S. at 357-358, 48 S.Ct. at 149:
The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment. Experience has shown that there was a real locus poenitentiae between the conviction and certainty of punishment, on the one hand, and the actual imprisonment and public disgrace of incarceration and evil association on the other. If the case was a proper one, great good could be done in stopping punishment by putting the new criminal on probation. The avoidance of imprisonment at time of sentence was therefore the period to which the advocates of a Probation Act always directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence.
The legislative history of the Federal Probation Act is extensive. See, e. g., 54 Cong.Rec. 3637, 4373 (1917); 65 Cong.Rec. 9188, 11076-11078 (1924); 66 Cong.Rec. 5199-5201, 5204-5205 (1925); H.R.Rep.No. 423, 68th Cong., 1st Sess. (1924); H.R.Rep. No.1377, 68th Cong., 2nd Sess. (1925); Hearing on S. 1092 before a Subcommittee of the Committee on the Judiciary, United States Senate, 64th Cong., 1st Sess. (1916); Hearing on S. 1042 and S. 1729 before a Subcommittee of the Committee on the Judiciary, United States Senate, 68th Cong., 1st Sess. (1924). This legislative record is discussed in great detail in Roberts v. United States, 320 U.S. 264, 268-270, 64 S.Ct. 113, 88 L.Ed. 41 (1943), and in United States v. Murray, 275 U.S. at 354-355, 48 S.Ct. 146, which need not be repeated here. Suffice it to say that our study of these legislative materials and of the judicial decisions considering them reveals nothing warranting an interpretation of Section 3651 differing from its natural meaning.
The legislative records appear to be of limited usefulness because no direct express statements concerning the phrase in question were made. During the legislative debates, only two references were made to the provision in the bill limiting the probationary powers of the federal courts to cases in which the defendants were convicted of crimes “not punishable by death or life imprisonment.” During the House debates, Representative Hersey commented that the bill “does not apply to death sentences or life imprisonment.” 65 Cong.Rec. 11076 (1924). And Representative Woodrum observed:
[t]his bill goes further than any law I have seen in a State court. It has no limitation whatever on the age, gravity of the offense — except it must not be punished with death — or the number of times that the defendant may have been before that or some other court for violation of the laws of the United States.
66 Cong.Reg. 5205 (1925). Neither of these remarks is an attempt to define the phrase “not punishable by death or life imprisonment.” Rather these remarks are shorthand, imprecise ways of referring to the statutory exception. Neither remark warrants disregarding the plain meaning of the statutory language.
In addition, in amending Section 3651 in 1948, 1958, 1970, and 1972, Congress made no suggestion that it should be given a different interpretation. See H.R.Rep.No. 304, 80th. Cong., 1st Sess., at A173-A174 (1947); P.L. 85-463, reprinted in [1958] U.S. Code Cong. & Admin.News, pp. 258, 2689-2691; P.L. 85-741, reprinted in [1958] U.S. Code Cong. & Admin.News, pp. 976-977, 3841-3843; P.L. 91-492, reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 1270-1271, 4324 — 4331; P.L. 92-293, reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 166-167, 2257-2263.
The current revision of the Criminal Code Reform Act of 1977 (S. 1437) is further indication that Section 3651 means what it says. Section 2101 of that bill would authorize the imposition of a sentence to a term of probation in all cases, unless the case involves a “Class A felony,” or an offense for which probation has been expressly precluded, or the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense. The accompanying Senate Report provides that “subsection (a)(1) excludes Class A felony offenders from receiving a sentence of probation, thus excluding, as does current law, those offenders subject to a penalty of life imprisonment or death.” S.Rep.95-905, 95th Cong., 1st Sess. 899 (1977) (emphasis added).
Nor do the basic principles underlying a sentence to probation require this Court to reject the plain meaning of Section 3651. The purpose of probation, as defined by the Supreme Court in Roberts v. United States, 320 U.S. at 272, 64 S.Ct. at 117, is
to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose the institutional punishment for his original offense in the event that he abuse this opportunity.
See also generally United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928). Because probation is “an authorized mode of mild and ambulatory punishment,” it is an inadequate sentence for the more serious criminal offenses. It was appropriate for Congress to authorize the federal courts to order probation only for those convicted of the less serious crimes, and it was reasonable for Congress to draw the line at those few offenses subject to a maximum punishment of death or life imprisonment.
The legislative history of the 1968 amendment to 18 U.S.C.A. § 241 increasing its maximum punishment to life imprisonment in death cases indicates that Congress did not intend the federal courts to grant probation in such cases. Before 1968, the maximum punishment for a violation of 18 U.S.C.A. § 241 was 10 years’ imprisonment and a $5,000 fine, even if death resulted. In that year Congress amended both 18 U.S.C.A. §§ 241 and 242 to provide for a maximum sentence of life imprisonment for violations resulting in death. See Pub.L. 90-284, reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 89-111, 1837-1867. The legislative history of these amendments indicates congressional dissatisfaction with maximum sentences of 10 years’ imprisonment for violations of 18 U.S.C.A. § 241 resulting in death. The Senate Report provides:
[t]he maximum penalties [of 18 U.S.C. §§ 241 and 242] are inadequate for cases in which bodily injury or death has occurred. Section 241 provides a maximum penalty of a $5,000 fine or a 10-year prison sentence or both..
The penalties prescribed in the bill are graduated in accordance with the seriousness of the results of violations, ranging from misdemeanor penalties when no one is harmed, to $10,000 fines and 10 years imprisonment when there is physical injury, and life imprisonment when death occurs.
S.Rep.No.721, 90th Cong., 1st Sess., p. 6 (1967), U.S.Code Cong. & Admin.News, [1968], p. 1841. During the Senate debate, Senator Hart stated:
H.R. 2516 increases the maximum penalties for violation of 18 United States Code 241 and 242. Currently the maximum penalties under these two sections are too lenient where a death has occurred.
114 Cong.Rec. 318 (1968). See also 114 Cong.Rec. 9590 (1968) (Remarks of Rep. Ryan); 113 Cong.Rec. 22772 (1967) (remarks of Rep. Gilbert); 114 Cong.Rec. 669 (1968) (remarks of Sen. Scott). After the 1968 amendment, all defendants convicted of a violation of 18 U.S.C.A. § 241 resulting in death, except those in the present case, received sentences of life imprisonment. See United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977) (sentences for two of three defendants reduced to 25 years’ imprisonment on retrial); United States v. Harvey, 526 F.2d 529 (2d Cir. 1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976); United States v. Robinson, 503 F.2d 208 (7th Cir. 1974), cert. denied, 420 U.S. 949, 95 S.Ct. 1333, 43 L.Ed.2d 427 (1975); United States v. Pacelli, 491 F.2d 1108 (2d Cir. 1974), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974).
Finally, the weight of relevant judicial authority supports our construction of Section 3651. Our research has revealed only one case, State v. Taylor, 151 Fla. 296, 9 So.2d 708 (1942) (en banc), in which a court was presented with the precise question at issue here. The Taylor case involved a state statute which, like Section 3651, authorized a trial court to grant probation to a defendant except in the case of an offense “punishable by death or life imprisonment.” The Florida Supreme Court concluded: “[t]he word ‘punishable’ may be defined as ‘capable of being punished by law or right.’ ” Id. at 708. The Florida court held that under the statute a trial court could not grant probation to a person convicted of second degree murder — an offense for which a term of life imprisonment could be imposed under state law — even though a lesser term of incarceration was allowable. See also United States v. Remling, 548 F.2d 1274 (6th Cir. 1977); Coon v. United States, 360 F.2d 550 (8th Cir. 1966); The Thrasher, 173 F. 258 (9th Cir. 1909); United States v. Carubia, 377 F.Supp. 1099 (E.D.N.Y.1974); United States v. Watkinds, 6 F. 152 (C.C.D.Or.1881). See generally Annotation, 35A Words and Phrases 171-73 (1963) and cases cited.
Taylor, then, is directly contrary to the ruling of the District Court in the present case. That case is particularly persuasive because “[wjhen Congress passed the Probation Law... it must be understood to have intended the system so established to be construed in the same sense as it had been in the states from which it was borrowed.” United States v. Lecato, 29 F.2d 694, 695 (2d Cir. 1928) (Hand, J.), quoted with approval in Birnbaum v. United States, 107 F.2d 885, 887 (4th Cir. 1939). Cf. Metropolitan Railroad Co. v. Moore, 121 U.S. 558, 572, 75 S.Ct. 1334, 30 L.Ed. 1022 (1887).
Federal courts have attributed this meaning to the word “punishable” in somewhat analogous contexts. For example, in In re Mills, 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107 (1890); the Supreme Court considered a federal statute that established a United States court in the Indian Territory having jurisdiction over all offenses “not punishable by death or by imprisonment at hard labor.” The Supreme Court concluded that “the words, ‘punishable... by imprisonment at hard labor,’ in the act. embrace offenses which, although not imperatively required by statute to be so punished, may, in the discretion of the court, be punished by imprisonment in a penitentiary.” Id. at 268, 10 S.Ct. at 764. A similar interpretation has been afforded the phrase “punishable by death or life imprisonment” in the Juvenile Delinquency Act, 18 U.S. C.A. § 5031. See, e. g., United States v. Quinones, 353 F.Supp. 1325, 1327 (D.P.R. 1973), aff’d, 516 F.2d 1309 (1st Cir. 1975), cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975). In Coon v. United States, 360 F.2d 550 (8th Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 145, 17 L.Ed.2d 100 (1966), the United States Court of Appeals for the Eighth Circuit held a federal statute which provided that “an indictment for any offense punishable by death may be found at any time without limitation” encompassed any offense for which the death penalty may be imposed.
The District Court rejected the plain meaning of Section 3651 and adopted an interpretation that is supported by neither legal authority nor the practice in the federal judicial system. The District Court held that under Section 3651, “[pjrobation is prohibited when a punishment of death or life imprisonment is mandatory ” (emphasis in the original). The only legal authority cited by the District Court in support of its interpretation of Section 3651 is United States v. Woods, 484 F.2d 127 (4th Cir. 1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974). Woods does not support the proposition for which it was cited. The defendant in Woods was convicted of first degree murder under 18 U.S.C.A. § 1111. The United States Court of Appeals for the Fourth Circuit held that she could not be sentenced pursuant to 18 U.S.C.A. § 4208(a)(2), now 18 U.S.C.A. § 4205(b)(2), under which she would be eligible for parole at any time a parole board might determine. By its terms, Section 4208(a)(2) did not apply to any offense for which a mandatory penalty was provided. The Court of Appeals held that because a life sentence under 18 U.S.C.A. § 1111 is mandatory, the District Court was without authority to impose a sentence under Section 4208.
Woods dealt with 18 U.S.C.A. § 4208(a)(2); the case had nothing to do with 18 U.S.C.A. § 3651. From its citation to page 139 of the Woods opinion, the District Court here apparently relied upon the following statement in that opinion relating to 18 U.S.C.A. § 3651: “We note that 18 U.S.C. § 3651 prohibits either probation or a suspended sentence for crimes punishable by life imprisonment, such as first degree murder....” We believe that this language is entirely consistent with our construction of Section 3651. It does not support the proposition that probation is prohibited only for those convicted of a crime for which a life sentence is the mandatory punishment. The Court of Appeals was simply listing first degree murder as one of those crimes punishable by life imprisonment. In any event, this language is merely obiter dictum. We believe that the Woods case actually undermines the District Court’s interpretation of Section 3651, because it demonstrates that when Congress wants to withhold certain sentencing benefits only from those convicted of crimes with mandatory sentences, it does so explicitly.
Apparently, only one court, the Supreme Court of Colorado, has interpreted the word “punishable” in the same fashion as the District Court here. See Jaramillo v. District Court, 480 P.2d 841 (Colo.1971) (en banc). The defendant in Jaramillo, a 17-year-old youth, was charged with aggravated robbery, an offense carrying a possible punishment of “not less than four years, or for life.” The Colorado Supreme Court considered the applicability of a state statute providing that any person under eighteen years of age who commits a felony shall be treated as a delinquent child, except for crimes of violence “punishable by death or life imprisonment.” It ruled that the juvenile court had exclusive jurisdiction over this offense. The court stated that it had studied and “puzzled” over what it thought were all the applicable authorities and had found itself “as much in the dark as to the legislative intent as when [it] commenced.” Id. at 842. The court concluded that “ ‘punishable by death or life imprisonment’ does not embrace offenses which have a sentence of less than life imprisonment as a minimum and a maximum of either life imprisonment or death.” Id. at 843. In reaching its decision, the court in Jaramillo failed to include among the authorities cited People v. Godding, 55 Colo. 579, 136 P. 1011 (1913) (en banc), which interpreted an article of the Colorado Constitution defining the term “felony” to mean any criminal offense punishable by death or imprisonment in the penitentiary. The Court in Godding held that “punishable” meant “liable to punishment” or “which may be punished,” and not “absolutely punishable.” Thus, the court ruled, any offense which may be punished by imprisonment in a penitentiary is a “felony,” even though in the discretion of the court a lighter sentence might be imposed.
We cannot resolve this case on the basis of the Jaramillo decision. Except for the decision of the District Court, it stands alone, against the great weight of authority, in its interpretation of the word “punishable.” And it deals with the jurisdiction of a juvenile court, not with probation. Finally, it appears to be inconsistent with the earlier Godding decision. But see Maddox v. People, 178 Colo. 366, 497 P.2d 1263, 1264 (1973).
The District Court also relied upon statistics derived from recent Annual Reports of the Administrative Office of the United States Courts. These statistics, according to the District Court, showed that in 1975, 1976, and 1977, probation was granted to 111 defendants convicted of second degree murder (18 U.S.C.A. § 1111), rape (18 U.S.C.A. § 2081), and kidnaping (18 U.S.C.A. § 1201), violations of which are punishable by imprisonment for any term of years or for life. The District Court concluded these statistics showed that “throughout the nation, the Federal Judiciary has interpreted the language ‘imprisonment (or imprisoned) for any term of years or for life’ to be consistent with the language of 18 U.S.C.A. § 3651 authorizing the granting of probation.” We cannot agree. In the first place, evidence of judicial practice is not controlling as a matter of law. The Supreme Court established long ago that federal courts could not, by practice, affect their authority to grant probation. Ex parte United States, 242 U.S. 27, 50-53, 37 S.Ct. 72, 61 L.Ed. 129 (1916). Secondly, these statistics fail to demonstrate a general practice among the federal courts of granting probation to defendants convicted of offenses punishable by death or life imprisonment. Of the 111 defendants assertedly charged with second degree murder, rape, or kidnaping for the years in question, 37 were sentenced under the Juvenile Delinquency Act, 18 U.S.C.A. § 5301 et seq. and 25 were sentenced under the Youth Corrections Act, 18 U.S.C.A. § 5005 et seq. The authority of federal courts to grant probation pursuant to these statutes is in addition to their authority under 18 U.S.C.A. § 3651. The specific sentencing procedures of these Acts take precedence over the general limitation on the use of probation in 18 U.S.C.A. § 3651. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976); Morton v. Mancari, 417 U.S. 535, 550-551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); Bulova Watch Co. Inc., v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961).
Of the remaining 49 defendants, 45 were convicted of related offenses not punishable by life imprisonment or death. Thus, all but four of the 111 defendants given probation were either found guilty of an offense not punishable by life imprisonment or death or were sentenced under the special sentencing procedures of the Juvenile Delinquency Act or the
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:
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