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songer_respond2_5_3
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
Albert COOPER, Appellant, v. STATE OF NORTH CAROLINA, Samuel P. Garrison, Warden, Central Prison, Appellees.
No. 82-6293.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 6, 1982.
Decided March 10, 1983.
Norman B. Smith, Greensboro, N.C. (Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., on brief), for appellant.
Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., of North Carolina, Raleigh, N.C., on brief), for appellees.
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.
ERVIN, Circuit Judge:
Albert Cooper challenges the constitutionality of his incarceration by the state of North Carolina after his felony conviction in state court. The district court denied his petition for a writ of habeas corpus and this court granted a certificate of probable cause. We now affirm.
I.
On December 2, 1971, Cooper was discovered by a policeman in a bowling alley in Goldsboro, North Carolina. He was behaving in a peculiar manner and was taken to a local hospital, where he told a nurse that he had “destroyed” his wife and children and made irrational statements to the nurse and to other hospital personnel. That same evening police entered Cooper’s apartment and found the bodies of his wife and four children, who had been brutally murdered.
Cooper was admitted to a state mental hospital and charged with the murders of his family. After being shuttled between hospital and court for several months, he finally was found competent to stand trial, although it was considered necessary by his doctor to keep him under medication during the trial in order to keep his mental illness in remission.
Cooper pled not guilty to five counts of first degree murder. His evidence at trial went toward showing his mental illness, and was largely corroborated by the state’s evidence. Indeed, the state has not contended at any point in Cooper’s odyssey that Cooper is not suffering from mental illness, but only that he was not legally insane when he committed the murders, and was legally competent to stand trial.
The trial judge instructed the jury that it could return verdicts of guilty of first degree murder, guilty of second degree murder, not guilty by reason of insanity, or not guilty. He distinguished the two degrees of murder and described their respective elements in accord with North Carolina law at the time. The judge repeatedly informed the jury that the state had the burden of proving beyond a reasonable doubt all the elements of the crime, including (for first degree murder) specific intent to kill, premeditation, and deliberation. The judge further instructed the jury that Cooper had the burden of proving to the jury’s satisfaction that he was legally insane at the time of the murders. He did not tell the jurors specifically that evidence of Cooper’s mental illness could be considered with regard to the elements of specific intent, premeditation, and deliberation, although he did state generally that their decision as to the existence vel non of a reasonable doubt should be “based on reason and common sense arising out of some or all of the evidence.”
The jury found Cooper guilty of first degree murder on all counts, and he was sentenced to life imprisonment. The North Carolina Supreme Court affirmed Cooper’s conviction over a strong dissent by Chief Justice Sharp, who argued that Cooper was entitled to a specific jury instruction that evidence of his paranoid schizophrenia was to be considered in determining whether the state had proven specific intent, premeditation, and deliberation. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305, 334-35 (N.C.1975) (Sharp, C.J., dissenting).
II.
Cooper maintains before this court only one ground for habeas relief: the claim of entitlement to a specific jury instruction that evidence of his mental illness be taken into account in determining the state’s success in proving specific intent, premeditation, and deliberation. A jury charge which compels or even invites reasonable jurors to accept an unconstitutional view of the law vitiates a defendant’s conviction and can never be harmless error. Sandstrom v. Montana, 442 U.S. 510,526, 99 S.Ct. 2450, 2460, 61 L.Ed.2d 39 (1979). However, when reviewing a charge for constitutional infirmity, the court is required to look at the charge “in its entirety,” not just at the challenged parts. Reeves v. Reed, 596 F.2d 628, 629 (4th Cir.1979). While a charge which is correct viewed in its entirety will be upheld ordinarily despite the existence of misstatements of law, internal self-contradiction may render it invalid.
First instructing the jury in one way and then in another ... requires reversal for a new trial ... “If a charge to a jury, considered in its entirety, correctly states the law, the incorrectness of one paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudical, for the jury might have followed the erroneous instructions.”
United States v. Walker, 677 F.2d 1014, 1016 n. 3 (4th Cir.1982), quoting McFarland v. United States, 174 F.2d 538, 539 (D.C.Cir. 1949).
In collateral review of a jury charge, the court can grant relief only if a stringent standard is met by the petitioner: that of demonstrating that “the offending instruction is so oppressive as to render a trial fundamentally unfair.” Adkins v. Bordenkircher, 517 F.Supp. 390, 399 (S.D.W.Va. 1981), aff’d, 674 F.2d 279 (4th Cir.1982). The Supreme Court recently stated, in a case in which the petitioner’s claim, like Cooper’s, was that an omission in the jury charge constituted error, that
[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. [141] 147 [94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” id. at 146 [94 S.Ct. at 400]. In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation beyond the reading of the statutory language itself of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.
Henderson v. Kibbe, 431 U.S. 145, 154-155, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). It is apparent that to afford Cooper relief this court must find that he has carried a very heavy burden of persuasion.
III.
Cooper’s primary objection to the trial judge’s jury instructions is the latter’s failure to instruct the jury to consider evidence about Cooper’s mental illness with regard to the elements of specific intent, premeditation, and deliberation of the crime of first degree murder. This, according to Cooper, in effect shifted to him the burden of disproving those elements of the crime.
It is clear that a state may make insanity an affirmative defense to be proven by the defendant, see Patterson v. New York, 432 U.S. 197, 205, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977), and may rely on a presumption of sanity in proving its case-in-chief in a criminal prosecution, see Mullaney v. Wilbur, 421 U.S. 684, 702 n. 31, 95 S.Ct. 1881,1891 n. 31, 44 L.Ed.2d 508 (1975). It is equally clear that the state must prove beyond a reasonable doubt every element of the crime with which a defendant is charged, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and “may not shift the burden of proof to the defendant by presuming [an element of a crime] upon proof of the other elements of the crime.” Patterson, 432 U.S. at 215, 97 S.Ct. at 2329. The labels attached by the state legislature or supreme court are not dispositive, see Patterson, id. at 210, 97 S.Ct. at 2327, and the federal courts are to employ a “functional analysis” aimed at determining whether the state has in effect incorporated the absence of the affirmative defense into the elements of the crime. See Holloway v. McElroy, 632 F.2d 605, 625, 628 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).
Cooper claims that by failing specifically to instruct the jury that it should consider mental illness evidence in connection with the state’s proof of specific intent, premeditation, and deliberation, the state trial court put the burden on him of demonstrating, through the insanity defense, the absence of intent. Under North Carolina law, the existence of mental illness can negate the possibility of intent, deliberation, and premeditation, see State v. Cooper, 213 S.E.2d at 320, elements of first degree murder which the state had to prove to convict Cooper. Cooper argues that the judge’s specific instruction to consider the mental illness evidence with respect to his affirmative defense of insanity might have misled the jury into thinking that it could consider that evidence only in that regard.
While there is a slight possibility that the jury could have misunderstood the trial judge’s somewhat imprecise instruction, Cooper has not made the showing that “the offending instruction [rendered the] trial fundamentally unfair,” Adkins,■ 517 F.Supp. at 379, necessary to support the grant of the writ of habeas corpus. The trial judge did tell the jury that they were to consider whether the state had excluded all reasonable doubts on the basis of “some or all of the evidence.” He repeatedly instructed the jury that the state had to prove all the elements of first degree murder beyond a reasonable doubt, and that this burden of persuasion included the elements of specific intent, premeditation, and deliberation. He stated that “with deliberation” meant “while in a cool state of mind.” Viewed “in its entirety,” we do not find that the charge was misleading, or “infected the entire trial.” Henderson, 431 U.S. at 154, 97 S.Ct. at 1736.
IV.
Cooper has failed to shoulder with success the heavy burden on a habeas petitioner who challenges a jury charge because of a sin of omission. Therefore, the district court’s denial of the writ must be affirmed.
AFFIRMED.
. The judge’s instruction that proof of an intentional killing gave rise to a presumption of malice accorded with then current state law but violated the due process requirements of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). This claim was not raised on direct appeal to the state supreme court, and, therefore, federal habeas relief is precluded. See Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980).
. This narrow standard of review does not contradict the general principle that constitutional infirmity in a jury charge is never harmless error, but only requires a stricter standard of proof from a habeas petitioner seeking to show such infirmity than is imposed on a criminal defendant in a direct appeal from his or her conviction.
. Cooper also contends that the North Carolina Supreme Court’s opinion on his direct appeal established an irrebuttable presumption of capacity to deliberate and premeditate arising upon his failure to prove his insanity defense, and that such a presumption violates due process. This argument misconceives our role in habeas corpus proceedings. This court does not exercise appellate jurisdiction over the state supreme court, and our concern in such proceedings is not to correct alleged errors in that court’s views of federal law, but solely to determine if the petitioner’s incarceration violates the federal Constitution. As we discuss below, the state trial court did not deny Cooper due process, and his incarceration is constitutional.
Cooper’s final argument, that his conviction violated the equal protection clause because North Carolina law guarantees a defendant a jury instruction on the effect of voluntary intoxication on the intentional elements of first degree murder, but does not guarantee such an instruction on the effect of mental illness, was not presented to the state supreme court or to the federal district court below. Cooper, therefore, may not raise this contention here. See Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980).
. Cooper’s reliance on Hughes v. Mathews, 576 F.2d 1250 (7th Cir.1978), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978), is misplaced. The constitutional error in that case was that the state used a rebuttable presumption of intent to convict a defendant while forbidding him to introduce relevant psychiatric evidence tending to rebut the presumption. No evidence was excluded in this case.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
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songer_dissent
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1
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Plaintiff-Appellee, v. Ronald Thomas BOHLE, Defendant-Appellant.
No. 18604.
United States Court of Appeals, Seventh Circuit.
June 2, 1971.
Cummings, Circuit Judge, concurred with opinion.
Enoch, Senior Circuit Judge, dissented with opinion.
James H. Pankow, Joseph T. Helling, Philip C. Potts, South Bend, Ind., for defendant-appellant.
William C. Lee, U. S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U. S. Atty., South Bend, Ind., for plaintiff-appellee.
Before ENOCH, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges.
PELL, Circuit Judge.
On January 9, 1969, the destined course of Eastern Airlines Flight No. 831 originating at Miami, Florida was diverted from the Bahamas to Cuba by a procedure variously known as hijacking or skyjacking and sometimes more grandiloquently referred to as air piracy.
Ronald Thomas Bohle was indicted for the act pursuant to 49 U.S.C. §§ 1472 (i) and 1473(a) in the Northern District of Indiana where he stood trial before a jury, resulting in his conviction and sentencing of twenty-five years confinement.
We fail to find in the record any serious, or even token, disputation that Bohle did not board the plane in Miami and after the plane was aloft and over open water that he did not with the actual use of a switchblade knife and the threatened use of concealed nitroglycerin and a gun persuade a stewardess to take appropriate steps to divert the course of the plane to Cuba.
While the possibility of an insanity defense was alluded to at a hearing on a motion for bond reduction in December 1969, it was not until the second day of the trial on April 24, 1970, after the Government had concluded its ease-in-ehief, that counsel indicated to the court that insanity was an issue in the case.
Most of the contentions raised on this appeal concern alleged errors occurring during the course of the seven day trial and insofar as pertinent thereto, evi-dentiary aspects of this case will be set forth in connection with the specific contentions of Bohle for reversal. There are, however, two threshold contentions of error.
VENUE CONTENTION
Bohle’s first contention is that venue was improper in the district court for the Northern District of Indiana, under the provisions of 49 U.S.C. § 1473(a). That section, insofar as here relevant, provides that where, as here, the offense takes place outside any district, “the trial shall be in the district where the offender * * * is arrested or is first brought. If such offender * * * [is] not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender * *
A complaint charging Bohle with aircraft piracy was filed with the United States Commissioner in the Northern District of Indiana on June 27, 1969. Bohle was transported to the United States border by Canadian officials on November 2, 1969, entering the United States in the Northern District of New York. He was there arrested pursuant to a warrant issued by the United States Commissioner in Indiana. Following his removal to the Northern District of Indiana, an indictment was returned in that district on December 15, 1969.
Bohle asserts that venue was lacking in the Northern District of Indiana because he was arrested in the Northern District of New York before the indictment was returned in Indiana. The Government argues in part that the purpose of the venue provision is satisfied by the filing of the complaint in Indiana before Bohle was “arrested or brought into any district. * * * ” By this filing, it is contended, the first step was taken leading to the return of an indictment and the prosecution was thus begun in the Northern District of Indiana before Bohle’s return to this country.
We need not reach the merits of this phase of the Government’s position since even if defendant is correct in asserting that venue was otherwise improper, he has waived any objection he might have had. Venue was challenged for the first time in a motion for acquittal filed at the close of the Government’s case. While such a motion is the proper vehicle for asserting objections to venue in some cases, United States v. Jones, 174 F.2d 746 (7th Cir. 1949); 1 Wright, Federal Practice and Procedure: Criminal § 306, p. 600, this is not one of those cases.
A challenge to venue in a motion for acquittal is timely only where there is a proper allegation of venue which is not sustained by the evidence. 1 Wright, Federal Practice and Procedure: Criminal § 306, p. 600 and cases cited at n. 9 therein. In such a case the defendant has no notice of a defect of venue until the Government rests without proving what it has alleged. Until he has such notice, there can be no waiver. United States v. Gross, 276 F.2d 816, 819 (2d Cir. 1960), cert. den. 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525.
However, where the fact of improper venue is apparent on the face of the indictment, it has been uniformly held that the objection is waived if not presented before the close of the Government’s case and perhaps if not presented before commencement of trial. 1 Wright, Federal Practice and Procedure: Criminal § 306, pp. 305-06 and cases cited at nn. 7 & 8 therein.
Bohle attempts to take this case out of this latter rule by arguing that the indictment alleged that his last place of residence was in Michigan City, Indiana, within the Northern District. He maintains that the indictment thus charged proper venue and the defect appeared only when the Government’s proof failed to sustain venue in the Northern District of Indiana.
This argument distorts the idea of an allegation of proper venue. An indictment alleges proper venue when it alleges facts which, if proven, would sustain venue. Here the indictment alleged facts which, even if proven, would not sustain venue. The defendant was on notice that even if the Government proved all it alleged, proper venue would not be shown.
Here the indictment alleged that Bohle’s last place of residence was within the Northern District of Indiana and the Government proved that allegation at trial. However, such allegation and proof were insufficient to establish venue in the Northern District of Indiana unless the Government further alleged and proved that the indictment was returned prior to Bohle’s return to the United States. That crucial allegation was absent from the indictment and thus the allegation of venue was patently improper. Bohle was chargeable with knowledge of this possible defect in venue which was apparent on the face of the indictment prior to trial. Any objection which he might have raised to it was waived by his failure to assert it until the close of the Government’s case.
Specifically, Bohle filed a motion to dismiss on December 23, 1969, prior to his arraignment two months later. In this motion the indictment was challenged on a number of grounds but nothing was even intimated about a venue question although all of the facts pertaining thereto had to have been known at that time. Rule 12(b) (2) of the Federal Rules of Criminal Procedure requires that any such motion “shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof * * However, the court for cause shown may grant relief from the waiver.
No effort to show cause was made and indeed it appears that Bohle’s interest was best served by a trial in the Northern District of Indiana.
No doubt if the point had been raised on the motion to dismiss and there had been a ruling favorable to Bohle, his counsel might very well on the facts of this particular case had urgent reasons for then waiving. Neither Bohle nor the alleged offense had any connection with the Northern District of New York. That was merely the fortuitous place of his return to this country. Bohle had lived in Indiana all of his life. He left Indiana only 24 hours before the commission of the alleged offense. All of his lay witnesses and two of his medical witnesses lived in Indiana in close proximity to the court where he was tried. So far as we can determine, none of his witnesses resided closer to the court in New York than to the court in Indiana.
We further note that Bohle first appeared before the commissioner in New York state on the morning of November 2, 1969, at which time he was advised of the charges against him and of his right to counsel including the appointment thereof. Pursuant to his request for counsel, an attorney was appointed who represented him at this preliminary stage. On November 3, 1969, after conferring with the attorney, Bohle appeared before the commissioner and executed a waiver of removal hearing form. Inadvertently, and apparently through a scrivener’s error, the commissioner papers were made out for removal to the Southern District of Florida where no charge or complaint was pending against Bohle. The only complaint and warrant issued for him were from the Northern District of Indiana. That this was a scrivener’s error is evident from the order subsequently issued on November 10, 1969 by the United States District Court for the Northern District of New York commanding the marshal of that district to remove Bohle to the Northern District of Indiana, “upon the waiver of a hearing and consent to removal to said District by the said Ronald Thomas Bohle. * * * ”
As stated in Chandler v. United States, 171 F.2d 921, 933 (1st Cir. 1948), cert. den. 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949), “It would indeed be unfortunate if we were compelled to hold, on such a highly technical ground, that this elaborate trial has gone for naught.”
We find the venue contention of Bohle, asserting improper venue rather than lack of venue, to be without merit.
CONSTITUTIONALITY OF STATUTE
A section of the statute pursuant to which Bohle was indicted defines the offense involved as “any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft in flight in air commerce.” 49 U.S.C. § 1472(i) (2). Bohle’s second threshold contention is a challenge to the constitutionality of this section.
Essentially the argument is that Congress must have intended something more than general criminal intent when it required the seizure of an aircraft to be “with wrongful intent” to constitute a crime since general intent is required even if not mentioned. Therefore, Congress, it is asserted, must have intended to require some specific intent as an element of the crime but the word “wrongful” is too vague to describe any specific intent and therefore the statute is unconstitutionally vague. From the cases cited by defendant, it would seem that he believes Congress may have intended to require the specific intent to deprive permanently the owner of his property as is often required in robbery statutes, whether or not specifically set forth.
We are not persuaded by defendant’s pedantic reasoning that Congress intended to make the hijacking of an aircraft a crime only if the hijacker intended to deprive permanently the owner of it. We agree with the Government and the district court that the wrongful intent referred to in the statute is no more than the general criminal intent present when one seizes or exercises control of an aircraft without having any legal right to do so.
Bohle’s remaining contentions concern alleged errors occurring during the trial. One of these, being claimed error in the giving and refusal to give certain instructions dealing with the intent required and with possible lesser included offenses not requiring some specific intent, necessarily falls with the rejection of Bohle’s theory that the statute under which he was indicted requires more than a general criminal intent.
The thrust of the remaining contentions is that allegedly erroneous rulings by the district court severely prejudiced the insanity defense.
LIMITATION ON ADMISSION OF EVIDENCE
One ruling related to defendant’s Exhibit A consisting of medical records covering Bohle’s hospitalization and treatment while in the Navy. The district court admitted these records but advised the jury that they were not admitted to prove the truth of the matters stated but merely because they formed part of the basis for expert opinion on Bohle’s mental condition in 1969.
The Government points out that among the documents in Exhibit A are certain statements by Bohle’s mother to a social worker relating to Bohle’s childhood. It defends the ruling of the trial court by asserting, “This sort of material is compounded, unreliable, damaging hearsay of the most obvious sort. That such hearsay is not permitted is so basic to the rules of evidence as to require no citation of authority.” We cannot agree that the matter is so simple.
Section 1732(a), Title 28, United States Code, provides:
“In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.
“All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.
“The term ‘business,’ as used in this section, includes business, profession, occupation, and calling of every kind.”
This statute was intended to permit the admission of business records which carry “a circumstantial guarantee of trustworthiness. The test is one of reliability.” United States v. Hickey, 360 F.2d 127, 143 (7th Cir. 1966), cert. den. 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed. 2d 210. It clearly applies in criminal as well as civil proceedings. Hickey, supra; United States v. Ware, 247 F.2d 698, 699-700 (7th Cir. 1957); and Wheeler v. United States, 93 U.S.App. D.C. 159, 211 F.2d 19, 23 (1953), cert. den. 347 U.S. 1019, 74 S.Ct. 876, 98 L. Ed. 1140 (1954). See also Fed.R.Crim. P., Rule 26, 18 U.S.C. Hospitals are included in the statutory phrase “any business.” Wheeler, supra; and England v. United States, 174 F.2d 466, 468-469 (5th Cir. 1949). See also Brucker v. Order of United Commercial Travelers, 217 F.2d 876, 881 (7th Cir. 1954).
Thus it is clear that at least some medical records prepared by hospital staffs are admissible in criminal cases. In addressing ourselves to the admissibility of the particular records before us, we deem it important to note that Exhibit A contains three general types of material. It contains material in the nature of a case history consisting largely of statements made by Bohle and third parties, principally his mother, and recorded by members of the hospital staffs. It also contains records concerning the treatment given Bohle and concerning observations made of him which require no special skill and as to which there is little likelihood of disagreement among trained observors. Finally, Exhibit A contains diagnoses, and similar judgment opinions, of Bohle’s condition prepared by those who attended him while he was hospitalized.
We do not propose to lay down rigid rules concerning any of these types of material, for in every case “the test is one of reliability,” Hickey, supra, 360 F.2d at 143. In each instance, the trial judge must be left some discretion to decide whether, in the words of the Uniform Rules of Evidence, “the sources of information from which [the records were] made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 63 (13). See Judicial Conference of the United States, Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 803 (6) and Advisory Committee’s Note, 51 F.R.D. 315, 420 and 426-429 (1971). (Hereafter Proposed Rules for United States Courts). However, some generalizations seem possible and appropriate.
The case history “multiple hearsay” type of material in Exhibit A consists almost exclusively of statements by Bohle and his mother concerning events in his life prior to being hospitalized. Some courts would apparently admit such subjective statements of a patient’s history without any express requirement of an independent exception to the hearsay rule apart from the business record statute. Glawe v. Rulon, 284 F.2d 495. 498 (8th Cir. 1960), and Gaussen v. United Fruit Co., 412 F.2d 72, 73-74 (2d Cir. 1969); Tucker v. Loew's Theatre & Realty Corp., 149 F.2d 677, 680 (2d Cir. 1945); but cf. contra Felice v. Long Island R.R. Co., 426 F.2d 192, 196-197 (2d Cir. 1970). See Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, 740-741 (1957) (dissenting opinion), cert. den. 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958); and New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297, 309-310 (1945). See also Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d 122, 131 (2d Cir. 1951), cert. den. 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374. See generally McCormick on Evidence § 266, p. 564. The purpose for which these courts would admit such evidence is not clear. We find it necessary to distinguish two separate situations.
First, where such statements of case history are relevant merely because made, we think they are clearly admissible under Section 1732(a) if they meet its conditions. See McCormick on Evidence, § 290, p. 611; and 3 Jones on Evidence, § 548, pp. 1066-67 (5th Ed. 1958). Thus, in the instant case, the trial court correctly admitted these multiple hearsay statements in Exhibit A since they formed part of the basis of the expert opinions concerning Bohle's mental condition and were thus relevant whether or not true. It is undisputed that they were taken in the regular course of the hospitals’ business and that the hospitals regularly took and promptly recorded such statements.
However, the question remains whether the district court was correct in refusing to admit such multiple hearsay for the truth of the matters stated. We think it was. The reason is aptly stated in the following passage:
“These acts were intended to make admissible records which, because made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recordation of third party statements is routine, taken apart from the source of the information recorded, imports no guaranty of the truth of the statements themselves. There is no reason for supposing an intention to make admissible hearsay of this sort. So to construe these statutes would make of them almost limitless dragnets for the introduction of randon, irresponsible testimony beyond the reach of the usual tests for accuracy.” Note, Business Entry Statutes, 48 Col.L.Rev. 920, 927 (1948).
See also 3 Jones on Evidence § 548, p. 1067 (5th Ed. 1958).
We emphasize that the test is one of reliability. While the recording, in the ordinary course of a hospital’s business, of statements by patients and third parties is persuasive of the fact, when relevant, that such statements were made, it does little by itself to add credence to the contents of the statement. Because “the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail.” Proposed Rules for United States Courts, Advisory Committee’s Note, supra, 51 F.R.D. at 427. See also eases cited therein. In such a case, the record is not admissible for the truth of the matters stated, “not because it contains hearsay, but because it was not made in the regular course of business.” Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. den. 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). See Simms v. United States, 101 U.S.App.D.C. 304, 248 F.2d 626, 630 (1957), cert. den. sub nom. Duncan v. United States, 355 U.S. 875, 78 S.Ct. 127, 2 L.Ed.2d 79. See generally McCormick on Evidence, § 290, p. 611 and cases cited therein.
Of course, where some independent exception to the hearsay rule is available to lend credibility to the second level hearsay and thus justify its admission, a different case is presented. See Proposed Rules for United States Courts, supra, Rule 805, 51 F.R.D. at 445; 2 Jones on Evidence § 316, p. 593 (5th Ed. 1958); McCormick on Evidence § 290, p. 611; and National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 66. Here, however, no such exception beyond that provided by Section 1732(a) is claimed. Accordingly, the trial court properly admitted the case history portions of Exhibit A under the limiting instruction that they were not to be taken for the truth of the matters stated.
Turning to the second general type of material contained in Exhibit A, there seems to be no disagreement, even by courts which take a narrow view of the scope of Section 1732(a), that “regularly recorded facts as to the patient’s condition or treatment on which the observations of competent physicians would not differ are of the same character as records of sales or payrolls [and are, therefore, admissible for the truth of the matter stated under Section 1732 (a)].” New York Life Ins. Co. v. Taylor, supra, 147 F.2d at 303; Wheeler v. United States, supra, 211 F.2d at 23; and England v. United States, supra, 174 F.2d at 468-469. This court has previously reached a similar conclusion, Brucker v. Order of United Commercial Travelers, supra, 217 F.2d at 881. This agreement also extends to the results of routine tests. Wheeler, supra, 211 F.2d at 23, and authorities cited therein; Taylor, supra, 147 F.2d at 303-304, and cases cited therein. This court has reached the same result as to analysis of drugs by a government chemist. United States v. Ware, supra, 247 F.2d at 699-700. See generally 4 Orfield, Criminal Procedure under the Federal Rules § 26.808, p. 425; 3 Jones on Evidence § 548, p. 1066 (5th Ed. 1958); McCormick on Evidence § 290, pp. 609-10; and 6 Wigmore on Evidence § 1707, p. 36 (3rd Ed. 1940).
There are significant amounts of such routine information in Exhibit A, some of which could have been helpful to Bohle’s defense of insanity had the jury been allowed to consider it as true. Thus, there are statements that Bohle was originally admitted to a government mental hospital after an attempted suicide and assignment to a cell in the brig “especially for mental cases,” and that he was thereafter transferred directly to another government mental hospital. The exhibit also contains particularized statements concerning Bohle’s appearance, conduct and reactions. Many of these might also have aided Bohle’s defense if taken as true. For example, the exhibit contained records of Bohle’s “disheveled, depressed” appearance and of the fact that “it was apparent that his judgment and insight was impaired.” Under the instruction of the trial court, the jury could not accept these statements as evidence that Bohle had, in fact, given such appearances. Further, Exhibit A contained statements concerning the treatment given Bohle. Certainly the fact that Bohle was given treatment for a mental condition in the past might have helped his defense had the jury been permitted to accept Exhibit A as evidence that he was in fact given such treatment.
Thus, we conclude that the district court erred in instructing the jury that, even as to such routine matters, Exhibit A was not to be taken for the truth of the matters stated.
It may be argued that the limitation on admission of Exhibit A was harmless error since the entire exhibit was before the jury which could very well have taken all of the matters therein as not only being accurate recordations, but accurate as to the content thereof. However, we cannot assume that the jury would have thus disregarded the court’s instruction. We are not unmindful of an apparent dilemma because in a converse situation where prejudicial evidence has gone before the jury and is then stricken and the jury admonished to disregard the same, courts sometime take the position that the admonition could not have been effective to have removed the prejudicial effect of the improper evidence.
We cannot here, however, ignore the potential disadvantaged situation in which Bohle found himself of being unable to assert the validity of the matter so recorded. While the judge’s admonitory limitation did not deny the truthfulness of the matters, nevertheless, since the district court did expressly state that they were not admitted for their truth, the jury had open to it the possible conclusion that the doctor’s testimony based in part upon the recorded data was suspect in having an infirm basis and such opinions were no better than the basis upon which they were founded. In any event, we need not, because we find other errors, determine finally the prejudicial effect of the erroneous exclusions standing alone.
The final type of material found in Exhibit A consists of diagnoses of Bohle’s mental condition by members of the hospital staffs. The admissibility of such statements under § 1732(a) has provoked much controversy. The controversy seems not to extend to diagnostic statements based on objective data and presenting no more than average difficulty of interpretation. Even courts which steadfastly oppose the admission of more complex diagnoses concede the admissibility of a diagnosis considered more routine and less conjectural. See, e. g., Taylor, supra, 147 F.2d at 303-304. See generally McCormick on Evidence § 290, p. 612, n. 33 and authorities cited therein. See also Brueker, supra, 217 F.2d at 881.
However, where, as here, diagnoses of mental conditions are involved, there is a strong split of opinion both among and within courts. The opposing positions have been concisely summarized by Chief Judge Murrah in Otney v. United States, 340 F.2d 696, 699-700 (10th Cir. 1965). He finds that courts which exclude hospital records of psychiatrist’s opinions “draw a ‘distinction between the reasonable reliability of recorded facts on the one hand, and controversial technical opinions on the other’ and they regard the ‘difference between a “fact” (such as an act, transaction, occurrence or event) and an “opinion” ’, as fundamental in the law of evidence.” Id. Those courts which would admit such records view the diagnosis as “a recorded occurrence or event made in the course of the business of operating a hospital * * * [and] can see no basis for drawing a distinction between diagnoses of mental illness and diagnoses of physical illness or, for that matter, between ‘facts’ and ‘opinion’.” Id.
To this summary, we would add that courts wtiich would exclude records of mental diagnoses stress that because such diagnoses are based so much on judgment and opinion and are so subject to disagreement among trained experts, they must be “subjected to the safeguard of cross-examination of the physician who makes [them].” Taylor, supra, 147 F.2d at 304.
Those who would admit such records reply that the circumstantial guarantee of the accuracy of such diagnostic records is greater than average “for the records are made and relied upon in affairs of life and death.” Lyles v. United States, supra, 254 F.2d at 738-739 (dissenting opinion), citing 6 Wigmore on Evidence § 1707, p. 36 (3rd Ed. 1940); and Thomas v. Hogan, 308 F.2d 355, 361 (4th Cir. 1962), and cases cited therein. Further, it is reasoned, compelling the attendance at trial of all the medical personnel responsible for the diagnostic record “is too serious a price to pay for the doubtful advantage of cross-examining a doctor who [due to the volume of such routine cases] has little or no independent recollection of the subject he has reduced to writing.” Lyles, supra, 254 F.2d at 738 (dissenting opinion).
In addition, advocates of the admission of these records suggest that all records are subject to error which cross-examination might expose, but that Section 1732(a) nevertheless makes them admissible in reliance upon the circumstantial guarantees of trustworthiness arising from their origin, id. at 738-739, and in reliance upon the ability of juries to allow the proper weight to medical opinion of all types, id. at 740. Finally, it is argued that where the circumstantial evidence of trustworthiness is shown to be lacking either by the records themselves or by other evidence indicating that the opinion lacks factual basis or expert qualification, then the records would be barred by the limitations of Section 1732(a) itself and the doctrine of Palmer v. Hoffman, 318 U.S. 109, 111-115, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Thomas, supra, 308 F.2d at 361; Lyles, supra, 254 F.2d at 740. See Otney, supra, 340 F.2d at 700.
The positions taken in this controversy by various state and federal courts are ably summarized, with detailed citations, by Chief Judge Sobeloff in Thomas v. Hogan, supra, 308 F.2d at 359-360. See also 23 Modern Federal Practice Digest, Federal Civil Procedure, § 1192, for recent cases. The Advisory Committee’s Notes to the Proposed Rules for United States Courts, supra, 51 F.R.D. at 427-428, indicate a nearly even split in federal courts and note that the trend in state courts favors admissibility. The Proposed Rules, Rule 803(6), would admit diagnostic records. Id. at 420 and 428.
Apart from cases already cited sustaining the admission of routine observations and tests. Ware, supra, 247 F.2d 698, and Brucker, supra, 217 F.2d 876, this court has not been squarely presented the problem of diagnostic records. In a case involving a war risk insurance claim, we noted that the record contained evidence that the plaintiff had been admitted to a hospital and his mental condition diagnosed as psychoneurosis, hysteria. Becker v. United States, 145 F.2d 171, 173 (7th Cir. 1944). However, there was apparently no challenge to the admission of this evidence. Also, it may be questioned whether the evidence was admitted for the truth of the matters stated. See Taylor, supra, 147 F.2d at 305 n. 11. We think it clear that Becker was not intended to, and did not, resolve the question of the admissibility of records of mental diagnoses. Thus, we must approach it as an issue of first impression in this court.
It may well be that the coexistence of an increasingly complex society and overburdened courts may in the future necessitate the elimination of some of the evidentiary rules which we have heretofore deemed to be safe-guards for verity. We do not believe that we have arrived at that point, however, with regard to the third type of material under consideration. We concede that the records are made and relied upon in affairs of life and death but the proposed method of introduction would eliminate any direct attack upon the weaknesses or the omissions of the opinions involved. Admittedly too, medical personnel is becoming more reluctant to spend time in the court room. Resort may be more and more to out of court depositions but nevertheless the opponent is able thereby to have the opportunity of confrontation as to a particular opinion.
As a matter of fact, those who in a particular case would desire to gain the admission of the evidence may in some instances suffer by so doing. Thus, some other doctor for the opposition may on the witness stand refer to the opinion and point out that there is no indication therein that a particular aspect had been given consideration. Such aspect may well have been considered by the recording doctor but not deemed to be of such sufficient significance to record. By his not testifying, however, to spell out and defend his position, it is substantially weakened.
Particularly in the matter before us, we are dealing with a field of science in which there are many variables and one in which opinions must perforce be based upon many subjective factors requiring judgment evaluation. Here particularly the party to be confronted by such an opinion should have the full opportunity of cross-examination. We must also keep in mind that cross-examination deals not only with the basis and content of an opinion but with the professional qualification of the person rendering the opinion. This often would not appear in the recorded opinion.
For these reasons we are of the opinion that the district court ruled correctly as to the third type of evidentiary material.
Our discussion thus far has assumed that some parts of Bohle’s medical records could be admitted as evidence of the truth of the matters stated while other parts could be admitted for the lesser purpose of background without importing verity.
At least one court of appeals has found it to be clear error to admit less than the entire record. Harris v. Smith, 372 F.2d 806, 816-817 (8th Cir. 1967), and Glawe, supra,, 284 F.2d at 498. Where the admission of the entire record is necessary as background for parts otherwise admissible, we agree that it would ordinarily be error to exclude some parts. However, we can find no persuasive reason for an absolute rule on the subject. Certainly, where only part of the record is admissible for the truth of the matters stated, the court should so inform the jury and instruct it that other parts are admissible only as background.
EXAMINATION BY GOVERNMENT PSYCHIATRIST
Bohle further contends that his Fifth Amendment privilege against self-incrimination was violated when the trial court compelled him to submit to an examination by a Government psychiatrist and so to submit without having his attorney present.
At the time the court ordered the psychiatric examination, Bohle also stated the desire for his psychiatrist to be present. This was not permitted. On the motion for a new trial, the ruling as to the psychiatrist was urged in addition to that pertaining to the presence of counsel. On this appeal, however, the exclusion of the defendant’s psychiatrist was not urged as an error and we may deem it waived. If it had been urged, we would have treated this in the same manner as we do hereinafter the request for the presence of counsel.
Nearly two months prior to the beginning of the trial, the Government had moved to have Bohle examined by the Government’s own psychiatrist. The motion was denied by the court at that time. At the close of the second day of trial, just prior to the Government’s resting its case, when the defendant indicated that insanity was to be an issue, the district court then granted the Government’s motion and denied Bohle’s request that his counsel be present during the psychiatric examination. The examination was conducted over the weekend and the trial was not interrupted thereby. While there is apparently not entire unanimity on the issue here involved, which to some extent is still a developing concept in the law, in our opinion the better reasoning and result is that which is set forth in United States v. Albright, 388 F.2d 719 (4th Cir. 1958), and we approve the reasoning and result of that case for this circuit.
In Albright, the court adverted to the applicability of 18 U.S.C. § 4244 which pertains basically to mental competence at the time of trial. We are here concerned with Bohle’s mental competence at the time of the incident involved but as did the court in Albright, 388 F.2d at 723, we hold that because of the great importance of expert testimony on the issue of insanity and because of the minimal risk to the Fifth Amendment privilege, federal courts have the inherent power to order a defendant to submit to and coopérate with examination by a Government' psychiatrist where the defendant’s insanity has been made an
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Betty L. PRICE, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant-Appellee.
No. 83-5932.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 19, 1985.
Decided July 11, 1985.
John W. Peck, Senior Circuit Judge, filed dissenting opinion.
Nan Shelby Calloway, argued, Bowling Green, Ky., Mark D. Pierce, Saladino, Carneal & Pierce, Paducah, Ky., for plaintiff-appellant.
Ronald E. Meredith, U.S. Atty., David T. Gray, James Kerr, argued, Louisville, Ky., for defendant-appellee.
Before ENGEL and KRUPANSKY, Circuit Judges, and PECK, Senior Circuit Judge.
PER CURIAM.
Betty L. Price appeals from the summary judgment granted by United States Magistrate W. David King of the Western District of Kentucky which affirmed the denial by the Secretary of Health and Human Services (Secretary) of widow’s insurance benefits for Price.
On January 10, 1980, Price filed an application for widow's insurance benefits based upon disability pursuant to the Social Security Act, 42 U.S.C. § 402(e). Price claimed she was disabled as a result of high blood pressure, obesity, a ventral hernia, uterine prolapse, and cystocele. The application was denied initially and upon reconsideration by the Social Security Administration. Price then requested a de novo hearing before an Administrative Law Judge (AU).
On August 29, 1981, the AU held that claimant Price was not under a disability. The AU found that Price established the existence of obesity, hypertension with cardiac decompensation, uterine prolapse, ventral hernia, and cystocele. Nevertheless, he concluded that these impairments were not equivalent in severity and duration to any impairment listed in 20 C.F.R. Appendix 1 of Subpart P which follows section 404.1599. The AU’s decision became the final decision of the Secretary when the Appeals Council approved the decision on October 8, 1981.
On review of the final decision of the Secretary pursuant to 42 U.S.C. § 405(g), Magistrate King granted summary judgment finding substantial evidence on the record to support the AU’s decision. Magistrate King found that Price’s weight, which fluctuated between 208 and 227 pounds, did not equal or exceed the threshold weight of 236 pounds as listed in section 10.10 of 20 C.F.R. Appendix 1 of Sub-part P. In addition, Magistrate King found that Price’s obesity and ventral hernia were medically remediable by Price losing weight. Price appeals contending that there is not substantial evidence on the record to support the finding that she was not disabled.
Section 402(e) of 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, (3) she is disabled, and (4) her disability is expected to result in death or to last for a continuous period of not less than twelve months. A widow is required to satisfy a stricter standard of disability than a wage earner. Wokojance v. Weinberger, 513 F.2d 210, 212 (6th Cir.), cert. denied, 423 U.S. 856, 96 S.Ct. 106, 46 L.Ed.2d 82 (1975). A widow is not under a disability unless “her physical or mental impairment or impairments 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.” 42 U.S.C. § 423(d)(2)(B) (emphasis added). Moreover, the widow’s inability to work must be based solely upon medical considerations. 20 C.F.R. § 404.1577 (1984). A wage earner, on the other hand, need only show that his impairment prevents him from performing any substantial gainful activity, which can be based upon such non-medical factors as age, education and work experience. 42 U.S.C. § 423(d)(2)(A). This stricter test of disability for widows does not deprive widows of equal protection of laws. Wokojance, 513 F.2d at 212.
Section 423(d)(2)(B) authorizes the Secretary to set standards of severity for alleged disabilities which will be deemed to preclude an individual from engaging in any gainful activity. Reynolds v. Secretary of Health and Human Services, 707 F.2d 927 (6th Cir.1983). The Secretary has exercised that authority. An individual cannot qualify for widow’s disability benefits unless specific clinical findings show that she suffers from an impairment listed in the Appendix to 20 C.F.R. Subpart P, or clinical findings show that she suffers from one or more unlisted impairments that singly or in combination are the medical equivalent of a listed impairment. 20 C.F.R. § 404.1578 (1984); Wokojance, 513 F.2d at 212.
Section 10.10 of 20 C.F.R. Appendix 1 of Subpart P provides that a person may be disabled because of obesity if that person’s weight is equal to or greater than an enumerated value and the person suffers from one of five additional ailments. Price asserts that her obesity was accompanied by hypertension. Section 10.10 provides that a woman who is 60 inches in height must weigh 230 pounds and have hypertension with diastolic blood pressure persistently in excess of 100mm. Price fails to meet these impairment standards.
Price’s height is at least 60 inches. There are, however, no clinical findings that Price’s weight exceeded 230 pounds. Her highest reported weight was 227 pounds on June 31, 1980; her lowest weight was 208 pounds on July 81, 1980. In addition, Price’s diastolic blood pressure varied from 130 to 90. The lower readings followed Dr. Hunt’s treatment of Price for hypertension. In short, Price has failed to meet the listed impairments.
A widow will also be considered disabled if she suffers from one or more unlisted impairments that singly or in combination are the medical equivalent of a listed impairment. The Secretary found that Price’s impairments were not equivalent in severity to any impairment listed in 20 C.F.R. Appendix 1 of Subpart P. The Social Security Act 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). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a particular conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938); Beavers v. Secretary of Health Education and Welfare, 577 F.2d 383, 388 (6th Cir.1978).
Price asserts that her obesity and hypertension in combination with her ventral hernia, uterine prolapse and cystocele is medically equivalent to a listed impairment and renders her unable to engage in any gainful activity. There is substantial evidence in the record that Price can perform some gainful activity. First, the record shows that Price is well oriented and is able to manage her own affairs. Dr. Amble reported that Price has “bright normal intelligence when compared with the norms of her age group” and “may well have the capacity for much more complex employment demands [than routine and repetitious tasks].” Joint Appendix at 81-83. Price testified that she lives alone and does her own housework. Id. at 25, 28. With respect to Price’s ailments, Dr. Bradford reported that the uterine prolapse was minimal and the cystocele was small. Id. at 75. Price testified that a very snug girdle seems to handle and control the hernia. Id. at 28, 74. Dr. Hunt, Price’s treating physician, reported that standing and bending would put more pressure on her female organs and vagina, but sitting for long periods of time would not have any effect on the hernia or cystocele. Id. at 93-94. Although not free from physical problems, Price has failed to meet the strict standards for widow’s benefits that she cannot engage in any gainful activity.
Whether Price met the strict standard for widow’s benefits is a close question. The question being close, however, persuades us that we should not disturb the findings of the AU. Although the AU’s findings of fact could have been stated with more particularity, we are not persuaded that his findings are legally insufficient. Our conclusion as to the adequacy of the findings and as to disability might well be different if claimant were a wage earner subject to the more liberal substantial gainful activity test. In our circuit, when a claimant cannot perform his previous work, the burden shifts to the Secretary to bring forth evidence of available employment compatible with claimant’s limitations. Vaughn v. Finch, 431 F.2d 997, 998 (6th Cir.1970). In these cases, more particular findings may be necessary. See Zblewski v. Schweiker, 732 F.2d 75 (7th Cir.1984). Price’s appeal, however, does not raise these issues, and we do not decide them. Accordingly, we affirm the denial of benefits.
. Price testified that she was 61 inches in height. Dr. Amble states in his report that she is 6OV2 inches, and Dr. Bradford states in his report that she is 60 inches in height. If Price measured 61 inches in height, she would be required to weigh 236 pounds to meet the listed weight requirement.
. Cystocele is a large protruding vaginal wall resulting from childbirth.
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_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.
WASHINGTON GAS LIGHT COMPANY, Appellee, v. VIRGINIA ELECTRIC AND POWER COMPANY, Appellant.
No. 14605.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 9, 1970.
Decided Feb. 12, 1971.
Milton Handler, New York City (Michael D. Blechman, and Kaye, Scholer, Fierman, Hays & Handler, New York City, George D. Gibson, Lewis T. Booker, Michael W. Maupin, and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for appellant.
Herbert A. Bergson, Washington, D. C. (Howard Adler, Jr., Norman G. Knopf, Bergson, Borkland, Margolis & Adler, John J. Wilson, and Whiteford, Hart, Carmody & Wilson, Washington, D. C., James H. Simmonds, and Sim-monds, Coleburn, Towner & Carman, Arlington, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, MURRAH, Senior Circuit Judge, and CRAVEN, Circuit Judge.
Of the Tenth Circuit, sitting by designation.
CRAVEN, Circuit Judge:
This is an appeal from a decision of the district court holding certain practices of the Virginia Electric and Power Company (VEPCO) to be per se violations of Section I of the Sherman Act, 15 U.S.C. § 1, and also violations of Section 3 of the Clayton Act, 15 U.S.C. § 14. Two issues are presented to us either of which may be decisive of the appeal. One is whether the complained of practices by VEPCO are “state action” and therefore exempt from the purview of federal antitrust legislation. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L. Ed. 315 (1943). The other is whether VEPCO sold only one product, electricity, so as to take the case out of the tiein doctrine of Fortner Enterprises, Inc. v. United States Steel Corporation, 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969). We decide both issues in favor of VEPCO and reverse.
I.
VEPCO is a state regulated utility supplying electricity to areas of Virginia also served by the plaintiff gas utility, Washington Gas Light Company. Prior to 1960, practically all residences served by VEPCO obtained electrical power through overhead distribution lines. These lines were relatively inexpensive to install and were provided by VEPCO at no charge to new home builders. Early in the 1960’s installation of underground service lines became increasingly popular. Until 1963, VEPCO agreed to install “underground residential distribution” (URD) lines instead of the common overhead variety if the builder agreed to pay the additional expenses involved, usually amounting to a sum around $280.
In 1963 VEPCO began the first in a series of all-electric house plans designed to make it more attractive for the builder to install electric appliances in their new homes to the exclusion of the competing utility — natural gas. Washington Gas Light Company complains that these programs violated the Sherman and Clayton Acts. The district court’s findings reveal that the first ■plans offered URD installation free of charge if the builder went “all electric,” or at a substantially reduced rate if he went all electric except for heating and provided his own trenching and backfill-ing.
The state legislature in 1966 by statutory amendment specifically required Virginia’s utility regulatory body, the State Corporation Commission (SCC), to investigate the “promotional allowances and practices of public utilities and [to] * * * take such action as such investigation may indicate to be in the public interest.” After the Commission’s subsequent disapproval of the earlier VEP-CO plans, new programs were instituted giving credit on URD installation based on anticipated electrical usage. The anticipated consumption was computed through tables listing annual kilowatt hours used by various home appliances. The larger the estimated usage, the larger the credit against URD installation charges. The practical effect of going all electric under the new plan was the same as under the old — the credit given for residences going “all electric” was usually sufficient to cover the entire cost of URD installation. Subsequently, VEPCO’s base installation charges were considerably reduced and remained in effect until March of 1970 when the lower court’s prohibition became effective.
The result of VEPCO’s installation campaign was that significant inroads were made into areas previously dominated by the use of natural gas — home heating, water heating, and cooking.
The district court found the VEPCO plans per se violations of Section I of the Sherman Act as illegal “tying arrangements” and also violations of Section 3 of the Clayton Act as exclusive dealing arrangements without consideration of the Parker, supra, exemption. It is urged upon us that since the district court did not consider the application of Parker, neither should we. Desert Palace, Inc. v. Salisbury, 401 F. 2d 320, 323-324 (7th Cir. 1968). We think the rigid application of such a rule of procedure is inappropriate where the record provides an adequate basis for consideration on the merits. As the Supreme Court stated in Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941):
Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.
Accord, Dudley v. Inland Mutual Insurance Co., 299 F.2d 637 (4th Cir. 1962). Indeed, if deemed necessary to reach the correct result, an appellate court may sua sponte consider points not presented to the district court and not even raised on appeal by any party. See, e. g., United States v. Continental Can Co., 378 U. S. 441, 457, 470, 84 S.Ct. 1738, 12 L.Ed. 2d 953 (1964). In Parker the Court held a 1940 California raisin marketing program conducted by a state commission permissible even assuming the action would have been violative of the antitrust laws had the same plan been adopted by private individuals operating outside the state’s direction.
We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. * * * [I] t is the state, acting through the Commission, which adopts the program and which enforces it with penal sanctions, in the execution of a governmental policy.
317 U.S. at 350-352, 63 S.Ct. at 313-314.
To find shelter under Parker, the acts complained of must be the result of state action, either by state officials or by private individuals “under the active supervision” of the state, Allstate Insurance Company v. Lanier, 361 F.2d 870, 872 (4th Cir. 1966), although proposals may originate privately if their execution depends on state regulation or actual state implementation. Parker, supra, 317 U.S. at 352, 63 S.Ct. at 307.
The teaching of Parker v. Brown is that the antitrust laws are directed against individual and not state action. When a state has a public policy against free competition in an industry important to it, the state may regulate that industry in order to control or, in a proper case, to eliminate competition therein. It may even permit persons subject to such control to participate in the regulation, provided their activities are adequately supervised by independent state officials.
Asheville Tobacco Board of Trade, Inc. v. FTC, 263 F.2d 502, 509 (4th Cir. 1959).
If the exemption is to be applied to a regulated industry, such as a state utility, then it can extend only to those activities which fall under state supervision. See Wainwright v. National Dairy Products, Corp., 304 F.Supp. 567, 574-575 (N.D.Ga.1969). The regulatory agency must be a creature of the state and not one whose activities are governed by private agreement without any real state control. Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341, 342 (9th Cir. 1969); E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52, 55 (1st Cir. 1966); Allstate Insurance Co. v. Lanier, supra.
The Virginia State Corporation Commission is without question a proper state agency to qualify under Parker. Section 155 of the Virginia State Constitution makes explicit provision for the SCC giving it the power, among other things, to prescribe utility rates and, subject to the authority of the state legislature, to regulate other non-specified corporate utility activities. Sections of the Virginia Code provide a detailed system of regulatory powers and procedures whereby administrative action may be taken and reviewed with respect to “rates, tolls, charges, schedules,” etc.
There can be no doubt, and in fact Washington Gas Light does not argue to the contrary, that the SCC is a regulatory arm of the state, possessing both the authority and powers necessary to qualify under Parker. Instead, the gas company argues that even though the SCC was aware of VEPCO’s URD activities before 1966, it made no investigations and gave no affirmative approval (or disapproval) of the VEPCO plans, and that VEPCO’s conduct was therefore “individual” and not “state” action. The argument is not without merit but the conclusion is not inevitable unless one equates administrative silence with abandonment of administrative duty. It is just as sensible to infer that silence means consent, i. e., approval. Indeed, the latter inference seems the more likely one when we remember that even jthe gas company concedes that the SCC possessed adequate regulatory powers to stop VEPCO if it chose to do so, and that eventually SCC spoke affirmatively and first modified and finally ended the promotional practices upon which the suit was based. The antitrust laws are a poor substitute, we think, for plaintiff’s failure to promptly protest to the SCC and to seek the administrative remedy ultimately shown to have been available and effective. We think VEP-CO’s promotional practices were at all times within the ambit of regulation and under the control of SCC, and we hold these practices exempt from the application of the laws of antitrust under the Parker doctrine.
II.
“There is, at the outset of every tie-in case, including the familiar cases involving physical goods, the problem of determining whether two separate products are in fact involved.” Fortner Enterprises v. United States Steel Corporation, 394 U.S. 495, 507, 89 S.Ct. 1252, 1260, 22 L.Ed.2d 495 (1969).
Alternatively, we rest our decision upon the very difficult determination of this ultimate question of fact. In Fort-ner five members of the Supreme Court concluded that the extension of credit on favorable terms for the purchase of real property in an amount totaling over two million dollars by a wholly owned subsidiary of the United States Steel Corporation was a separate tying product resulting in compulsion to buy prefabricated buildings (to be erected on the purchased property) from United States Steel. Although the Court did not lay down any general test for finding two products in a given case, it did discuss various factors which may have entered into the decision, including these:
1. The credit offered and the prefabricated buildings were each supplied by a separate corporation.
2. The tied product (prefabricated buildings) were sold at an artificially high price — some $400 more than a competitive product of similar quality.
3. The credit obtained was in excess of that needed to purchase the desired real property, and included enough to finance the artificially inflated cost of prefabricated houses.
4. The loans totaling over two million dollars could not be obtained on any terms unless the prefabricated homes were bought exclusively from United States Steel Corporation.
5. The price of the tied product, prefabricated buildings, was not a regulated price, and United States Steel was as free to further its market penetration by price reduction as by offering uniquely advantageous credit.
It seems to us that VEPCO sold only one product — electricity. The delivery of that product has always been an ancillary and necessary part of the business of producing and selling electrical power. This was simply a new method of delivery but paid for in the old way, i. e., “free” to the customer. There was no separate market for the installation of underground wiring as there was a separate market for credit in Fortner. That there are not dual markets strongly suggests there are not separate products. See Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 614, 73 S.Ct. 872, 97 L.Ed. 1277 (1953).
Even in Fortner, four members of the Court thought that United States Steel was selling one product, namely prefabricated buildings, and that the provision of credit on a large scale to finance the purchase of land (not just the buildings) was simply an ancillary service in connection with making the sale. The dissenters noted that
[ajlmost all modern selling involves providing some ancillary services in connection with making the sale — delivery, installation, supplying fixtures, servicing, * * *\ Customarily — indeed almost invariably — the seller offers these ancillary services only in connection with the sale of his own products, and they are often offered without cost or at bargain rates.
394 U.S. at 525, 89 S.Ct. at 1270. (Emphasis added.)
Unlike United States Steel’s inflated price of the tied product (prefabricated homes) VEPCO’s rates for home heating and consumption of electricity, although higher than the rates for gas which would do the same job, were not arbitrarily inflated but had been approved by the Corporation Commission. There was nothing “artificial” about the price of electricity as there was with respect to the price of the prefabricated homes.
Finally, the ultimate effect of the Fortner type monopoly was to sell the tied prefabricated homes at an artificial inflated price in a market where the same identical prefabricated houses of similar quality could have been obtained by the consumer at a cost $400 cheaper. Washington Gas’ competing product is not identical or even necessarily of the same quality in the subjective sense. Some consumers may prefer electricity despite the greater heating efficiency of gas. Some may not want to be bothered with two monthly bills from two different companies and two problems of maintenance and repair of two different systems. Electricity is simply different from gas and may be subjectively preferred by a consumer despite its higher cost and the latter’s greater efficiency. Whether such a preference, if it exists, is a permissible one in our economy can better be determined by the expertise of a regulatory agency than random application of antitrust laws.
In Gas Light Co. of Columbus v. Georgia Power Co., 313 F.Supp. 860, 869 (M.D.Ga.1970), Judge Elliott considered and discussed the decision below in this case:
The curious thing about the opinion is the Court’s assumption that underground residential distribution and electricity are two separate products, so that one can be tied to the other as computer cards were tied to IBM machines in International Business Machines Corp. v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085 (1936). To my mind, Underground Residential Distribution is merely a method by which a product — electricity — is delivered to the consumer. It might be compared to a department store’s delivery of merchandise bought by a customer living fifteen miles out in the country — if that customer bought a single necktie it is doubtful the store would treat the delivery the same way' it would if the customer bought a wardrobe. Underground Residential Distribution is ancillary to both the seller and buyer of the product, in much the same way as a free meal given to an airline passenger is ancillary to the sale of an airline ticket. Therefore, it is difficult to see how there could be a separate tying product in the commercial sense, or how such a case could be fit within the tying clause concept.
With the greatest respect for the decision of the district judge, we nevertheless think that his ultimate finding of fact that there were two separate products was clearly erroneous and mistaken.
We suggest that the rationale and underlying purpose of both the Sherman and Clayton Acts is to prevent monopoly where it is not in the public interest. It has long since been established that both gas and electricity can best be produced and distributed (and the public benefited) by monopoly under state regulation. The problem here is not one of preventing monopoly as in Fortner, but of making lawful monopoly work best in the public interest. Doubtless, we think, SCO can do a better job than private piecemeal application of laws aimed against monopoly.
Reversed.
. Va.Code Ann. § 56-247 (1969).
. In April of 1970 the SCC issued an order prohibiting all promotional allowances of utilities, but allowed commitments made under prior plans to be fulfilled. Thus our decision is of no great consequence for the future. Presumably VEPCO has discontinued the practices which are the basis for this suit.
. See also Woods Exploration & Production Company v. Aluminum Company of America, 284 P.Supp. 582, 588-589 (S.D. Tex.1968).
. § 56-235. AVhen Commission may fix rates, schedules, etc. — If upon investigation the rates, tolls, charges, schedules, or joint rates of any public utility operating in this State shall be found to be unjust, unreasonable, insufficient or unjustly discriminatory or to be preferential or otherwise in violation of any of the provisions of law, the State Corporation Commission shall have power to fix and order substituted therefor such rate or rates, tolls, charges or schedules as shall be just and reasonable. (Code 1919, § 4071.)
§ 56-236. Public utilities required to file, etc., schedules of rates and charges; rules and regulations. — Every public utility shall be required to file with the Commission and to keep open to public inspection schedules showing rates and charges, either for itself, or joint rates and charges between itself and any other public utility. Every public utility shall file' with, and as a part of, such schedules, copies of all rules and regulations that in any manner affect the rates charged or to be charged. (Code 1919, § 4066; 1918, p. 674; 1924, p. 538; 1927, p. 123.)
'§ 56-238. Suspension of proposed rates, etc.; investigation; fixing reasonable rates, etc. — The Commission, either upon complaint or on its own motion, may suspend the enforcement of any or all of the proposed rates, tolls, charges, rules or regulations, for a period not exceeding sixty days, during which time it shall investigate the reasonableness or justice of the proposed rates, tolls, charges, rules and regulations and thereupon fix and order substituted therefor such rates, tolls, charges, rules and regulations as shall be just and reasonable. * * * (Emphasis added) (Code 1919, § 4066; 1918, p. 674; 1924, p. 539; 1927, p. 123.)
§ 56-239. Appeal from action of Commission. — -The public utility whose schedules shall have been so filed or the Commonwealth or other party in interest may appeal to the Supreme Court of Appeals from such decision or order as the Commission may finally enter. * * * (Code 1919, § 4066; 1918, p. 674; 1924, p. 539; 1927, p. 124.)
§ 56-247. Commission may change regulations, measurements, practices, services, or acts. — If upon investigation it shall be found that any regulation, measurement, practice, act or service of any public utility complained of is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise in violation of law or if it be found that any service is inadequate or that any reasonable service cannot be obtained, the Commission may substitute therefor such oth-' er regulations, measurements, practices, service or acts and make such order respecting, and such changes in, such regulations, measurements, practices, service or acts as shall be just and reasonable. The Commission shall investigate the promotional allowances and practices of public utilities and shall take such ac-^ tion as such investigation may indicate to be in the public interest. (Code 1919, § 4072; 1966, c. 552.)
. 394 U.S. at 507, 89 S.Ct. 1252.
The Court recognized that in some situations a credit offer may be legitimately connected with the sale of a product as “an inseparable part” of the transaction. But it distinguished the Fortner transaction as clearly involving two products because of two facts: the loan and the tied goods were sold by separate corporations, and the loan was for an amount larger than that needed to pay the seller of the tied product.
The Supreme Court, 1968 Term, 83 Harv.L.Kev. 7, 244 (1969).
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_juryinst
|
A
|
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".
INGRAM COAL COMPANY, a corporation, Plaintiff-Appellee, v. MOWER LIMITED PARTNERSHIP, A West Virginia Limited Partnership, Defendant-Appellant.
No. 87-2194.
United States Court of Appeals, Fourth Circuit.
Argued May 9, 1989.
Decided Dec. 21, 1989.
Christopher Sax Smith (Eugene R. Hoyer, Hoyer, Hoyer and Smith, Charleston, W.Va., on brief), for defendant-appellant.
Steven Paul McGowan, Charleston, W.Va. (Herbert G. Underwood, Clarksburg, W.Va., Steptoe & Johnson, Charleston, W.Va., on brief), for plaintiff-appellee.
Before WIDENER, Circuit Judge, ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation, and MacKENZIE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
WIDENER, Circuit Judge:
In June 1983 Ingram Coal Company sold certain of its assets to Mower Lumber Company and NewEra Resources Corporation (predecessors in interest to the appellant, Mower Limited Partnership). The sale included the Cheat Bridge Coal Preparation Plant in Randolph County, W.Va., and the rights to certain coal leases in the surrounding area. The transaction was memorialized by a written Asset Purchase and Sale Agreement dated June 15, 1983. In this agreement Ingram warranted that the coal cleaning plant was in good operating condition and suitable for its intended use.
Sometime subsequently, Mower contended that the plant was not in good condition on the date of sale, and that this constituted a breach of contract making Ingram liable for $91,406.15 in repairs, plus interest in the amount of $19,899.88. Mower also contended that the plant was not suitable for its intended use. In December 1985, Mower withheld $111,306.03 it owed to Ingram under a Coal Sales Agency Agreement to apply against Mower’s claim for the cost of repairs to the plant. Ingram then filed this suit based on diversity jurisdiction seeking judgment in the amount of the withheld funds. Mower filed a counterclaim seeking damages for breach of warranty of fitness for intended use and breach of warranty of good condition.
At the close of Mower’s evidence on its counterclaim, the district court granted Ingram’s motion for a directed verdict as to the claim of breach of express warranty that the cleaning plant would be suitable for its intended use. The remainder of the case went to the jury. The jury found that Mower owed Ingram the $111,306.03 withheld, but also found that Ingram breached its warranty that the plant would be in good condition and repair on the date of sale and awarded Mower $44,000 in damages. The court entered judgment in favor of Ingram for $66,894.72. Mower appeals, claiming the district court erred in granting the directed verdict and in excluding certain evidence. We affirm.
In section 5.7 of the sales agreement, Ingram warranted that the coal cleaning plant would be in good operating order and fit for its intended use. The section reads:
Condition of Assets. The Preparation Plant is in good condition and repair, ordinary wear and tear, which is not as to affect adversely the operation of the Preparation Plant, excepted, and suitable for the use for which intended, but Seller makes no representation or warranty as to the capacity of the Preparation Plant. The Preparation Plant conforms in all material respects with all applicable laws, ordinance, regulations, rules, orders and other requirements relating thereto currently in effect.
The agreement, however, does not define the “use for which intended” of the plant. The agreement also provides that it shall be construed and interpreted in accordance with the laws of West Virginia and that the “Agreement, together with the annexed Exhibits constitutes the entire agreement between the parties.... ”
Mower argues that the intended use of the plant is to clean all marketable coal mined from the surrounding properties and that on the date of sale the plant was not in conformity with this warranty because it cannot clean the fine coal mined from the surrounding properties.
Ingram, on the other hand, claims that the plant is fit for its intended use, to clean and process coal that is larger than 0 X 100 mesh. Ingram contends that the plant flow sheet showing the design and limitations of the plant was available to Mower before the sale. This flow sheet shows, according to Ingram, that the plant was not built, nor has it ever been modified, to clean 0 X 100 mesh coal. Furthermore, Ingram points out that it disclaimed any representations as to the condition and grade of coal found on the surrounding property in the sales agreement. This provision reads:
Condition of Coal. Seller makes no representations or warranties regarding the quantity, quality or mineability of any coal contained on premises that are covered by any of the Coal Leases.
The district court rejected Mower’s interpretation of the intended use provision of the agreement and granted Ingram’s motion for a directed verdict on this claim. A motion for directed verdict should be granted only if, viewing the evidence most favorable to the party opposing the motion, a reasonable trier of fact could draw only one conclusion. Smithy Braedon Co. v. Hadid, 825 F.2d 787 (4th Cir.1987); Walker v. Pettit Construction Co., 605 F.2d 128 (4th Cir.1979). Under West Virginia law it is the duty of the court, and not the jury, to interpret a written contract. Orteza v. Monongalia County General Hospital, 318 S.E.2d 40, 43 (W.Va.1984). While the sales agreement at issue in this case provided for an express warranty of suitability for intended use, the agreement did not spell out the intended use of the plant. Thus, the district court had to construe the warranty at issue before it could rule on Ingram’s directed verdict motion.
The court found that the preparation plant was built without the ability to process fine coal in 1976. While modified in 1979 to process 28 X 100 mesh coal, the plant was never modified to process the ultrafine 0 X 100 mesh coal. The court further found that both Ingram and Mower were sophisticated, knowledgeable commercial parties, both of which knew the capacity and limitations of the plant.
The district court stated:
Mower’s counsel asserts and has asserted throughout that it is common sense that if a coal preparation plant is built on the property, it’s built for the economic reason to process coal from surrounding contiguous, adjacent or nearby properties, and the Court can accept that proposition as a general proposition, but to use that common sense proposition and to expand a general warranty of fit for intended purpose to mean the intended purpose to efficiently, economically, and properly claim all of Mower’s coal, mina-ble, and for which there is a market strains the Court’s credulity.
Thus, the court ruled that, as a matter of law, the contract did not provide for the warranty which Mower asserted. The court held that the plant is “generally fit for the intended purpose of processing, cleaning, and washing, and conveying coal.” Based on the uncontradicted evidence that the plant was suitable for this purpose, the court granted Ingram’s directed verdict motion on the breach of warranty of suitability for intended purpose.
We believe that the district court’s construction of the intended use warranty is correct. The court found, and it is not disputed by either party, that the plant has never been capable of processing 0 X 100 mesh coal. The court also found that both Mower and Ingram were knowledgeable, sophisticated commercial parties who were fully capable of protecting their own interest in an arm’s length transaction. It would be illogical to find that the parties had intended the plant to be suitable for a use that both parties knew it could not perform.
The district court ruled that the intended use of the plant was the use for which it was built, to process, wash, clean and convey coal. Neither party contends that the plant is not suitable for this purpose. Thus, under the district court’s construction of the warranty, the evidence leads to only one conclusion, the plant is suitable for its intended use. The court’s ruling on the directed verdict motion, therefore, was correct.
Mower also objects to what it calls the district court’s refusal to admit evidence of repairs made to the cleaning plant after October 1983. It takes the position that a list of repairs in the total amount of some $130,000.00 was ruled inadmissable by the district court. While it is true the list was not admitted into evidence, we have read that part of the record with respect to its admission and do not find a ruling of the district court with respect to the list. Indeed, there is some doubt the list was offered into evidence. A fair reading of the transcript seems to us more of an acquiescence of Mower that the objection to the admissibility of the list made by Ingram was well taken.
Even assuming, however, that most of the items on the list were items which Mower claimed needed repairing to get the plant into good operating condition, what we must assume to be essentially the same items were admitted into evidence as a part of the claim Mower made to Ingram in a letter dated December 20, 1985. An examination of the items on that December 20th list shows that none of them were dated after October 1983, and as to two of the three items on the December 20th list which were undated, evidence was introduced with particularity as to those items by invoice at the time the introduction of the list in question was not pursued. It is more than passing strange that in paragraph 8 of Mower’s counterclaim for damages it claims “$91,406.15 in costs and repairs,” and the amount in the itemized claim attached to the December 20th letter to Ingram we have just mentioned was also “$91,406.15.” In addition to the foregoing, Mower’s expert witness, Shufflebarger, testified as to an amount of $100,000.00 to place the plant in good operating condition on the date of the purchase. The jury returned its verdict in the amount of $40,-000.00 although Mower now claims that only $30,877.87 was considered by the jury.
Upon consideration of all of which we are of opinion there was no error with respect to the introduction or exclusion of that list, the point was not saved. And in the event that there was error, we are of opinion the same was harmless, for essentially the same evidence was introduced from other sources. This is a proper case, we think, for the application of F.R.C.P. 61 to the effect that error in the admission or exclusion of evidence should not be grounds for disturbing a judgment unless such admission or exclusion amounts to a denial of substantial justice. See also 28 U.S.C. § 2111.
The judgment of the district court is accordingly
AFFIRMED.
. The jury found that Mower owed Ingram $111,306.03 and that Ingram owed Mower $44,-000. We calculate the balance owing to Ingram as $67,306.03. The court entered judgment in the amount of $66,894.72. The only evidence in the record as to the cause of this difference is a mention by the district judge at the time of the return of the jury’s verdict that each party was entitled to prejudgment interest and this would be included in calculating the final judgment award. In any event, the parties do not dispute the $66,894.72 figure.
. Coal particles of differing sizes are delivered to the plant for cleaning. Coarser particles are classified as "1-1/2 inches by 28 mesh.” A smaller size is “28 mesh by 100 mesh” which is the consistency of talcum powder. "Ultrafine” particles are "100 mesh by zero.” The plant could not clean 0 x 100 mesh sized coal, and as a result, Mower had to send this coal to the refuse pile as waste. The testimony was that between June 1983 and 1986, twelve percent of the total clean coal product was sent to the refuse pile as a result of the plant's inability to clean 0 x 100 mesh coal.
. We ascribe the differences between the December 20th letter, the list in question, and Shufflebarger’s testimony to be due to differing estimates of different experts.
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_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.
CLIFT & GOODRICH, Inc., v. UNITED STATES.
No. 275.
Circuit Court of Appeals, Second Circuit.
March 14, 1932.
White & Case, of New York City (Arnold J. Brock, of New York City, of counsel), for appellant.
George Z. Medalie, U. S. Atty., of New York City (Leon E. Spencer, Asst. U. S. Atty., of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
The petitioner was a corporation, the successor to a firm of the same name; it was organized on April 1, 1919, and took over the firm property on May twenty-fourth of that year in exchange for preferred stock issued to the partners. These had already on January eighth filed individual income tax returns for their shares in the firm income for the year 1918, and a firm return for excess profits tax, and they paid the amounts returned on January twenty-second. On August fifteenth, the petitioner filed an excess profit and income tax return of the firm income for the year 1918) which was calculated as though it had been a corporation, as partners were allowed to do under section 330 of the Revenue Act of 1918 (40 Stat. 1094). The amount so shown the petitioner paid in three installments during 1919, after unsuccessful efforts to secure a set-off of the sums paid by the partners in January. On January 2, 1920, the Commissioner assessed against the petitioner the sum returned and paid, and later a deficiency which he after-wards abated on' the ground that only the firm, and not the corporation, could be taxed. The sums paid by the partners were later refunded, but the petitioner’s application for refund was refused, and this suit followed. All that is alleged regarding the relations between the petitioner and the partners as to the payment is as follows: “Each of said payments” (the three installments) “was charged on the books of the corporation to the tax account of the corporation, and not at that time, nor at any other time, charged either against the partnership or the individual members thereof.” The return of August 15, 1919, was made in the name of “Clift & Goodrich, (Partnership)”; two of the schedules carried the same caption; the others, the name “Clift & Goodrich,” not “Clift & Goodrich, Inc.,” the corporation’s title. The verification was by the president and treasurer of the corporation, who were two of the partners.
Section 330 of the Revenue Act of 1918 (40 Stat. 1094) allowed partners, whose business had been taken over by a corporation organized before July 1, 1919, in circumstances here existing, to file their return for 1918 as though they were a corporation, treating distribution made during the year as dividends, and not subjecting undistributed profits to surtaxes. This made a difference of some $37,000, by which the partners have profited, even assuming that they bore the same proportion of the tax here in question as shareholders that they would have borne as partners. The suit is based upon the theory that, as the Treasury officials treated the tax as that of the corporation without warrant of law, they have collected money which was really not due, since the partners should have paid it under a return made in accordance with section 330. If successful, the result will be that the partners will pay no taxes whatever for the year 1918. The judge dismissed the petition as demurrable and the petitioner appealed.
Any recovery must rest upon quasi contract, an implied promise to repay, raised ex aequo et bono because it was unconscionable for the respondent to keep the money. Cary v. Curtis, 3 How. 236, 11 L. Ed. 576; New York Life Ins. Co. v. Anderson, 263 F. 527 (C. C. A. 2). Had the petition alleged that the petitioner paid the tax under the mistaken belief that it was liable, the suit might perhaps succeed (Mayer v. Mayor, etc., of New York, 63 N. Y. 455; Betz v. City of New York, 119 App. Div. 91, 103 N. Y. S. 886, affirmed 193 N. Y. 625, 86 N. E. 1122), though even then there would be obstacles, for the old notion that a mistake of law will not serve in such a situation still prolongs its discreditable life; and it is moreover at least open to doubt whether there would not be a defence, if when the petition was filed, the period had already expired within which the partners could be assessed. But with these questions we need not concern ourselves, because the petition does not even intimate that the petitioner paid the tax under a mistaken belief that it was liable as a taxpayer. Indeed, it was not in existence during 1918, and it is entirely dear from the return itself that it. was acting for the partners. The payment was no more therefore than a gratuitous discharge of the obligor’s duty, and on what theory it can be recovered if that duty existed, we cannot conceive. The tax was certainly due from the partnersi and the Treasury had the right to keep the money, unless it. was inequitable to do so because it came from the corporation. An obligee is surely not bound in good conscience to repay such collections.
Besides, it sufficiently appears that the corporation had recourse over against the partners. Two of them made the return as officers of the petitioner; they at least were liable. As to the rest they procured refunds of what they had paid on January 22, 1919, because of the payment here in question, and that established an implied promise to reimburse the corporation, which they had no right to exploit. This is not affected by the allegation that they had never been charged with the tax on the corporate books. The right existed, and might well have been released by common consent, if the partners were the only shareholders. What they would receive as former partners would come out of their dividends as shareholders. Moreover, the whole issue is in any ease irrelevant, for it was not material to the Treasury’s right to retain the payment that the petitioner should, have indemnity.
The officials apparently supposed for a season that the corporation owed the tax, though they later receded from that position. No estoppel arises from this; it does not impugn the right of the Treasury to retain the money that its officers misconceived its basis, or their own powers. Had they coerced the payment, more might have been said, but all the instalments were paid before assessment. Nor does it make a difference that they were not made until the Treasury had refused to accept the partners’ payments of January in substitution for that due under the return. The petitioner was still not obliged to pay the tax; when it did so, it was either a mere interloper, or acting for the partners.
We do not forget that under section 156 of title 26, U. S. Code (26 USCA § 156), taxes may be recovered though not paid under duress. The section does not mean to enlarge the Treasury’s liability when the payment is not only voluntary, but made with full knowledge of the facts. It leaves open for determination whether under principles applicable in general to such suits, there is any basis for the recovery; and since it would be wholly unwarranted to rescind sueh a transaction merely because one party pays another’s tax actually due, with full knowledge of what he is doing, the section is pro tanto irrelevant.
Judgment affirmed.
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_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".
SKINNER v. RAILROAD RETIREMENT BOARD.
No. 10084.
United States Court of Appeals Seventh Circuit.
June 1, 1950.
Burke Williamson, Jack A. Williamson, Chicago, 111., for petitioner.
Myles F. Gibbons, General Counsel, U. S. Railroad Retirement Board, Chicago, 111., David B. Schreiber, Associate General Counsel, Railroad Retirement Board, Chicago, 111., Paul M. Johnson, Charles F. McLaughlin, Chicago, 111., attorneys, Railroad Retirement Board, of counsel, attorneys for respondent.
Before KERNER, FINNEGAN and LINDLEY, Circuit Judges.
FINNEGAN, Circuit Judge.
Petitioner filed his application with the Railroad Retirement Board for an annuity under the Railroad Retirement Act, 45 U.S. C.A. § 228a et seq., on April 29, 1946, alleging he was sixty-five years of age and still held rights to return to service with the Florida East Coast Railway Company.
The application was referred to the Bureau of Retirement Claims, a unit of the Board, and after an initial hearing the Bureau found that petitioner was discharged from the service of the Railway on May 21, 1933 and was not, as he claimed, in “the employment relation to an employer” on August 29, 1935. He was not otherwise an “employee” on or after August 29, 1935 and was not eligible for an annuity under the Act. Petitioner was notified of the Bureau’s finding. He then appealed to the Appeals Council of the Board and after submitting his evidence to that unit of the Board, the Council on. February 8, 1947, sustained the decision of the Bureau. He then appealed to the Board, claiming the Appeals Council erred in its action. The Board remanded the case to the Appeals Council, directing it to hear and receive additional evidence to be offered by petitioner, and also further argument, which the Council did, and on August 16, 1948, it rendered its decision again affirming the decision of the Bureau of Retirement Claims. Petitioner again appealed to the Board, and on April 19, 1949 the Board affirmed the decision of the Appeals Council denying the claim of petitioner to an annuity. The Board adopted as part of its decision an additional finding of fact to the effect that petitioner had notice before August 29, 1935 of his discharge by the Railway.
The decision of the Board is before us for review under section 11 of the Railroad Retirement Act of 1937 as amended, 45 U.S.C.A. § 228k, and section 5(f) of the Railroad Unemployment Insurance Act, as amended, 45 U.S.C.A. § 355(f).
Petitioner claims service with the Railway as a trainman from November 11, 1913 to March 1915, and as a switchman from January 1925 to January 1929, and from June 1932 to May 1933. Pie made claim for other Railroad service in and before June 1932. He says he was an “employee” on the “enactment date” of the Railroad Retirement Act August 29, 1935, by being “in the employment relation to” an “employer.”
The Board found the petitioner was not in the employment relation to the employer on August 29, 1935, as required by the Act, and was not eligible for an annuity under the Act. The record made before the Board amply sttpports its decision, no error of law appearing, its decision is conclusive on this court. Squires v. Railroad Retirement Board, 5 Cir., 161 F.2d 182, and cases there cited; Barton v. Railroad Retirement Board, 3 Cir., 177 F.2d 710; Monahan v. Railroad Retirement Board, 7 Cir., 181 F.2d 751.
The decision of the Board is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_genapel2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Charles SHELLY and Ina V. Shelly, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Johns-Manville Amiante Canada, Inc., Bell Asbestos Mines, Ltd., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., Turner & Newall, Ltd., GAF Corporation, Cape Asbestos, Cape Asbestos, Ltd., Egwep, Ltd., Asbestos Textile Institute, Raybestos-Manhattan, Inc., Southern Asbestos Company, Keene Corporation, Fiberboard Corporation, Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Third-Party Defendant. Thomas B. HUNTER, Sr., and Mary Hunter, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Johns-Manville Amiante Canada, Inc., Bell Asbestos Mines, Ltd., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., Turner & Newall, Ltd., GAF Corporation, Cape Asbestos, Cape Asbestos, Ltd., Egwep, Ltd., Asbestos Textile Institute, Raybestos-Manhattan, Inc., Southern Asbestos Company, Keene Corporation, Fiberboard Corporation, Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Third-Party Defendant. Bruce L. NUNEMACHER and Arlene B. Nunemacker, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Johns-Manville Amiante Canada, Inc., Bell Asbestos Mines, Ltd., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., Turner & Newall, Ltd., GAF Corporation, Cape Asbestos, Cape Asbestos, Ltd., Egwep, Ltd., Asbestos Textile Institute, Raybestos-Manhattan, Inc., Southern Asbestos Company, Keene Corporation, Fiberboard Corporation, Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Third-Party Defendant. George E. GOOD and Shirley A. Good, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Johns-Manville Amiante Canada, Inc., Bell Asbestos Mines, Ltd., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., Turner & Newall, Ltd., GAF Corporation, Cape Asbestos, Cape Asbestos, Ltd., Egwep, Ltd., Asbestos Textile Institute, Raybestos-Manhattan, Inc., Southern Asbestos Company, Keene Corporation, Fiberboard Corporation, Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Third-Party Defendant. Warren H. OYSTER and Anna Mae Oyster, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Johns-Manville Amiante Canada, Inc., Bell Asbestos Mines, Ltd., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., Turner & Newall, Ltd., GAF Corporation, Cape Asbestos, Cape Asbestos, Ltd., Egwep, Ltd., Asbestos Textile Institute, Raybestos-Manhattan, Inc., Southern Asbestos Company, Keene Corporation, Fiberboard Corporation, Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Third-Party Defendant. Allen D. PENWELL and Irene C. Penwell, Appellants, v. BELL ASBESTOS MINES, LTD., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., GAF Corporation, Raybestos-Manhattan, Inc., Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Turner & Newall, Ltd., and Turner Asbestos Fibres, Ltd. Mildred REINCKE, Administratrix of the Estate of George Reincke, and Mildred Reincke in her own right, Appellant, v. BELL ASBESTOS MINES, LTD., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., GAF Corporation, Raymark, Inc., Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Turner & Newall, Ltd., Turner Asbestos Fibres, Ltd. Jetwood W. HENSEL and Mary K. Hensel, Appellants, v. BELL ASBESTOS MINES, LTD., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., GAF Corporation, Raybestos-Manhattan, Inc., Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. TURNER & NEWALL, LTD., Turner Asbestos Fibres, Ltd, c/o Turner & Newall, Ltd., c/o Faulker House, C. Tenant & Sons Company of New York, Rhodesian & General Asbestos Corporation, Ltd., British Metal Corporation (South Africa Propriety), Ltd., Flintkote Company, Asbestos Corporation, Ltd., Asbestos Corporation of America. Melvin F. GAINER and Lanna Gainer, Appellants, v. BELL ASBESTOS MINES, LTD., Lake Asbestos of Quebec, Ltd., Carey-Canadian Mines, Ltd., GAF Corporation, Raybestos-Manhattan, Inc., Cassiar Asbestos Corporation, Ltd., Metropolitan Life Insurance Company, and the Celotex Corporation v. ASBESTOS CORPORATION, LTD., Cape Asbestos S.A. (PVT) United, Ltd., Flintkote Company, Jacquays Asbestos Corporation, C. Tenant & Sons Co., Turner & Newall, Ltd., and Turner Asbestos Fibres, Ltd.
Nos. 85-1712 to 85-1720.
United States Court of Appeals, Third Circuit.
Argued June 2, 1986.
Decided Aug. 11, 1986.
David M. Weinfeld (argued), Philadelphia, Pa., for appellants.
Arthur Makadon (argued), Creed C. Black, Jr., James D. Coleman, Mark S. Stewart, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellees.
Before GIBBONS, BECKER, and STAPLETON, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
Plaintiffs in these consolidated cases appeal from the district court’s dismissal, pursuant to Fed.R.Civ.P. 12(c), of their common law asbestos personal injury claims. The district court held that the suits were barred by the exclusivity provisions of the Pennsylvania Workmen’s Compensation and Occupational Disease Acts (“comp-bar”), which give employers immunity from common law suits by employees. In so holding, the court rejected the plaintiffs’ contention that they had pleaded a cause of action within the “intentional tort” exception to the comp-bar. We shall affirm on that point. However, because we also find that plaintiffs pleaded a cause of action within the “dual capacity” exception to the comp-bar, we shall reverse the judgment of the district court and remand the case for further proceedings.
I. Facts and Procedural History
Appellants, former employees of Ray-mark Industries, Inc., and their spouses, brought ten separate actions against Ray-mark in the United States District Court for the Eastern District of Pennsylvania. Each of the complaints alleged that plaintiffs had contracted asbestosis and/or bronchogenic carcinoma and/or mesothelioma, as a result of asbestos exposure to which they had been subjected by defendant. According to the complaints, plaintiffs reside near Raymark’s plant in Manheim, Pennsylvania. The complaints averred that Raymark’s misconduct resulted in the release of asbestos throughout the community, so that plaintiffs were exposed to asbestos in the normal course of their lives away from the workplace, as well as during their employment.
On September 13, 1985, Raymark moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), in each of the ten cases, alleging that plaintiffs’ sole remedies were through Pennsylvania’s workmen’s compensation scheme. To secure a uniform decision with respect to the motions, the Eastern District judges arranged for the ten cases against Raymark to be ponsolidated before a panel of six judges.
Defendant’s memorandum accompanying its motion to dismiss stressed that plaintiffs had failed to state a cause of action within the intentional tort exception to the comp-bar. In a footnote, defendants asserted that plaintiffs also failed to state a cause of action within the dual capacity exception to the comp-bar. In their memorandum opposing the motion to dismiss, plaintiffs argued that their complaint stated a cause of action within the intentional tort exception. Their memorandum also included a section discussing their exposure to asbestos away from the workplace.
The district court granted defendant’s motion to dismiss. Its opinion dealt exclusively with the intentional tort exception to the comp-bar, explaining why plaintiffs’ claims failed to come within that exception. The court made no mention of the allegations of exposure away from the workplace or of the dual capacity exception. On appeal, plaintiffs raise two arguments: 1) that the district court erred in finding that plaintiffs failed to state a claim within the intentional tort exception to the comp-bar; and 2) that the district court ignored the fact that plaintiffs’ allegations of exposure away from the workplace stated a cause of action under the dual capacity exception to the comp-bar.
There is no doubt that the district court correctly decided the intentional tort exception issue, for subsequent to its decision, this court held that under Pennsylvania law, suits virtually identical to those of plaintiffs did not state a claim within the intentional tort exception to the comp-bar. Wilson v. Asten-Hill Manufacturing Co., 791 F.2d 30 (3d Cir.1986). Wilson controls and requires that we affirm the district court’s decision insofar as it held that plaintiffs did not state a claim within the intentional tort exception. Therefore, the remaining issue in this case is whether the allegations in the complaint concerning plaintiffs’ exposure to asbestos away from the workplace stated a claim within the “dual capacity” exception to the comp-bar, first applied in the Pennsylvania Supreme Court case of Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982).
II. The Dual Capacity Doctrine Under Pennsylvania Law
In Tatrai, supra, a hospital employee became ill while on the job and went to the hospital emergency room to seek medical attention. The foot stand of the X-ray table on which she was perched in the emergency room was loose, and she fell. When Ms. Tatrai sued the hospital, it pleaded the comp-bar defense. The opinion of the court, written by Justice Nix, held for plaintiff on the ground that, because her injury was not suffered in the course of employment, she was not eligible for workmen’s compensation, hence the comp-bar did not apply. However, none of the other justices on the court joined Justice Nix’s opinion. Rather, Justice Roberts wrote a concurring opinion, joined by three justices, that supported plaintiff on a somewhat different basis. Justice Roberts essentially invoked the “dual capacity” doctrine:
In holding itself out to the public as a provider of medical services, appellee hospital owed a duty to all its patients. There is no basis for distinguishing appellant, a paying customer, from any other member of the public injured during the course of treatment.
Id., 497 Pa. at 255, 439 A.2d at 1166 (Roberts, J., concurring). Under this theory, plaintiff’s eligibility for workmen’s compensation was simply irrelevant. Id., 497 Pa. at 257, 439 A.2d at 1168. She was suing not as an employee injured by her employer, but as a member of the public.
Because Justice Roberts’ opinion was a concurrence (albeit joined by a majority of the court), and Justice Nix’s opinion for the court decided the case on a different basis, there is uncertainty as to whether the dual capacity doctrine is good law in Pennsylvania. After Tatrai, the Pennsylvania Supreme Court faced a case involving the doctrine, but provided no answer. See Budzichowski v. Bell Telephone Co., 503 Pa. 160, 469 A.2d 111 (1983) (court “assumed arguendo” that the doctrine is good law in the course of finding that, on the facts of the case, it did not apply in any event).
The lower Pennsylvania courts have not provided definitive guidance either. In Ko sowan v. MDC Industries, Inc., 319 Pa.Super. 91, 465 A.2d 1069 (1983), the Superior Court stated that Tatrai “did - not adopt generally the doctrine of dual capacity.” Id. at 1072. However, it reached that conclusion by analyzing Justice Nix’s lone opinion while simply ignoring the concurring opinion that had the support of four justices. Another superior court decision, Silvestri v. Strescon Industries, Inc., 312 Pa. Super. 82, 458 A.2d 246 (1983), noting the concurrence in Tatrai, concluded that the dual capacity doctrine is the law of Pennsylvania.
Our task, of course, is to predict what the Pennsylvania Supreme Court would do. Brown v. Caterpillar Tractor Co., 696 F.2d 246, 250 (3d Cir.1982). Even if the Pennsylvania Supreme Court cannot be said to have adopted the dual capacity doctrine in Tatrai, it surely gave us grounds for predicting that it will do so — four out of seven justices explicitly endorsed the doctrine, and none opposed it. Under the circumstances, we predict that the Pennsylvania Supreme Court, if called upon to decide the status of the dual capacity doctrine, would find the doctrine viable.
III. Did Plaintiffs’ State a Claim Under the Dual Capacity Doctrine?
We must next consider whether plaintiffs stated a claim for relief within the dual capacity exception. Paragraph 10 of plaintiffs’ complaints states:
Such exposure to defendants’ asbestos products occurred at the Manheim Plant, in and around their homes, on their way to and from their employment, before and after they began work for Raybestos-Manhattan.
Paragraph 12(a) states:
The aforesaid exposures occurred both during work in the work environment and outside work in the general atmosphere from ambient air____
(emphasis added). The crux of plaintiffs’ dual capacity argument, then, is that they were injured not only during their employment, but also in their role as part of the general public. They point out that, while defendant may be protected by the comp-bar from being sued in its capacity as an employer, it is obviously susceptible to suit by members of the general public who were injured by its polluting of the environment. In the latter case, Raymark is sued not in its capacity as an employer, but in its capacity as a private party. Plaintiffs contend that they are bringing suit as members of the public, alleging that they were injured by the asbestos dust that defendants released into the ambient air. They argue that the fact that they are also employees of Raymark is purely coincidental and should not deprive them of a cause of action. See Anastasi v. Pacor, Inc., 7 Phil. County Rptr. 488, 515 (1982) (dual capacity exception applies where those injured “are by coincidence employees but at the time of injury are not engaged in the business of the employer and are in their independent capacities as members of the general public.”).
In our view, plaintiffs’ claims fall squarely within the dual capacity exception to the comp-bar as enunciated in the Tatrai concurrence. If plaintiffs were injured by exposure away from the workplace, it is unreasonable to deprive them of a cause of action that is available to the general public. Plaintiffs’ allegations with respect to defendant’s polluting the environment, which must be taken as true for the purposes of the motion to dismiss, stand entirely apart from plaintiffs’ employment; under the pleadings, the environmental exposure would have occurred exactly as it did even if plaintiffs had never worked for defendant. These allegations concern defendant’s violations of its duty to the general public, not its specific duty to its employees.
Defendants cite several cases refusing to apply Tatrai to permit employees recovery from their employer. Koslop v. Cabot Corporation, 622 F.Supp. 222 (M.D.Pa. 1985); Oyster v. Johns Manville Corp., 568 F.Supp. 83 (E.D.Pa.1983); Kohr v. Raybestos-Manhattan, 522 F.Supp. 1070 (E.D.Pa.1981) (pre-Tatrai decision); Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 465 A.2d 1069 (1983) (non-asbestos case); Silvestri v. Strescon Industries, 312 Pa.Super. 82, 458 A.2d 246 (1983) (same). However, in all but one of these cases, the plaintiff’s injury was entirely work-related and the plaintiff tried to avoid the comp-bar simply by citing the fact that the employer manufactured or sold goods to the public, as well as employed the plaintiff. In the present case, by contrast, to the extent plaintiffs alleged exposure away from the workplace, they alleged violations that were entirely unrelated to their employment. Thus, as noted, the instant case genuinely resembles Tatrai in that plaintiffs allege violations that affected them as members of the general public, simply living in the neighborhood.
It is likely that most of plaintiffs’ exposure to asbestos occurred at the workplace. This circumstance does not mean that plaintiffs failed to state a claim under the dual capacity exception. It does suggest, however, that plaintiffs may have a difficult time establishing a relationship between their injuries and their exposure away from the workplace that is sufficient to justify recovery. That issue, however, is beyond the scope of this appeal.
Plaintiffs indisputably alleged that their injuries stemmed, in part, from exposure away from the workplace. Thus, they stated a cause of action outside of the comp-bar.
IV. Conclusion
For the reasons set forth above, we will reverse the judgment of the district court and remand this case for further proceedings.
. Employees who suffered from work-related asbestos diseases prior to 1972 had to seek compensation under the Occupational Disease Act, Pa.Stat.Ann. tit. 77 §§ 1208(/), 1403 (Purdon 1952). In 1972, the Workmen’s Compensation Act was amended to include asbestos-related diseases within its coverage. Pa.Stat.Ann. tit. 77, § 27.1(1) (Purdon 1952 & Supp.1985). An employee suffering from an asbestos-related disease may begin compensation proceedings under either Act, Pa.Stat.Ann. tit. 77, § 1000. Absent a judicially-recognized exception, an employee’s coverage under either Act is exclusive, and the employer is immune from common law suits by employees. Pa.Stat.Ann. tit. 77 §§ 481(a), 1403. References in this opinion to Workmen's Compensation and the comp-bar should be understood to include the Occupational Disease Act as well as the Workmen’s Compensation Act.
. The complaints also stated claims against several asbestos mining companies and product suppliers. These claims have been settled out of court.
The same counsel represented plaintiffs in all of the cases and the complaints in the ten cases were virtually identical. The complaints did not allege that the spouses had contracted diseases. The spouses’ claims were derivative, alleging that their husbands’, injuries resulted in damages to them.
. Certain claims in some of the cases had been dismissed prior to the consolidation; see, e.g., Oyster v. Johns-Manville Corp., 568 F.Supp. 83 (E.D.Pa.1983) (portions of plaintiff Oyster’s case based on negligence dismissed; published opinion discusses denial of motion to enter final judgment pursuant to Fed.R.Civ.P. 54(b) and of motion for certification under 28 U.S.C. § 1292(b)). No final order in Oyster and the other cases in which some claims were dismissed was entered until the six-judge panel dismissed the consolidated cases. Thus, the dismissal of the claims in those cases, as well as the dismissal of the remaining claims after consolidation, are before us now under 28 U.S.C. § 1291.
. Under Fed.R.Civ.P. 12(c), as under Rule 12(b)(6), the trial court must view the facts in the pleadings in the light most favorable to plaintiff and must grant the motion only if the moving party establishes that no material issues of fact remains and that it is entitled to judgment as a matter of law. Society Hill Civic Association v. Harris, 632 F.2d 1045, 1054 (3d Cir.1980), quoting 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1368, at 690 (1969). Our review of such determinations is plenary. Merklin v. United States, 788 F.2d 172, 174 (3d Cir.1986).
. The remaining two justices took no part in the case.
. Defendants contend that plaintiffs waived this claim by failing to state it in terms in the complaint or to argue the issue in their memorandum before the district court. We disagree. In response to an earlier motion for dismissal by defendant, prior to the consolidation of the ten cases, plaintiffs (in a memorandum filed in all of the cases) explicitly invoked the dual capacity doctrine, discussing Tatrai and noting that their exposure to asbestos had occurred "both on and off the employer’s premises." Second, although plaintiffs’ complaints did not state the magic words “dual capacity," they clearly raised the fact that plaintiffs had been injured away from the workplace (see paragraphs 10a and 12 quoted in the text). In addition, it is well-settled that "a complaint should not be dismissed ‘merely because plaintiffs allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.”’ Harrison v. Spring-dale Water and Sewer Co., 780 F.2d 1422, 1426 (8th Cir.1986) (citations omitted); accord District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081 (D.C.Cir.1984); Colonial Refrigerated Transportation, Inc. v. Worsham, 705 F.2d 821, 825 (6th Cir.1983); Gallick v. United States, 542 F.Supp. 188, 190 (M.D.Pa.1982). See also C. Wright & A. Miller, 5 Federal Practice and Procedure §§ 1219, 1357 (1969). Moreover, plaintiffs devoted an entire section of their brief before the district court, under the heading “Environmental Exposure,” to establishing that defendant caused them asbestos exposure where "plaintiffs lived, grew up, attended school, played and worked ... on their homes, streets, cars and play areas." Thus, plaintiffs clearly argued that their exposure away from the workplace constituted a ground for recovery. Because both parties emphasized the intentional tort exception issue, it is understandable that the district court did not address the question whether plaintiffs’ allegations of exposure away from the workplace formed a separate basis for recovery. However, plaintiffs did preserve the argument for this appeal.
. The only case in which a court rejected a dual capacity claim based on asbestos exposure outside of the workplace, Oyster v. Johns-Manville, 568 F.Supp. 83 (E.D.Pa.1983), is one of the cases consolidated for this appeal.
. Exactly what a plaintiff will have to establish on remand is an extremely complex question both legally and factually, as is demonstrated by the following queries. What if the fact-finder concludes that neither exposure at the workplace nor exposure away from the workplace, by itself, would have resulted in plaintiff contracting a disease, but rather that the combination caused the injury? What if the fact-finder concludes that plaintiffs exposure away from the workplace, by itself, would have caused his disease, but also concludes that the exposure at the workplace alone also would have caused the disease? What if the fact-finder concludes that plaintiff would have contracted the disease from exposure at the workplace alone, but that the disease is worse by virtue of exposure away from the workplace? It is unclear in which of these situations recovery is warranted. The extent of damages is also unclear. Suppose that the fact-finder concludes that both work-related exposure and neighborhood exposure combined to cause the disease, and finds defendant liable. Is the defendant, in its capacity as a business in the neighborhood, to be treated as a joint tortfeasor, and held liable for the entire amount of damages? Alternatively, should a court deduct from any damages award the amount the party did or could receive from workmen’s compensation?
As a general matter, under Pennsylvania law, plaintiffs must establish that the alleged violation was a "substantial factor” in bringing about their injury. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954). As the foregoing discussion suggests, the "substantial factor” analysis is problematic and lends itself to various approaches in the context of "dual capacity” claims against employers in asbestos cases. It is for the district court, in the first instance, to address these questions. We do not have a concrete case posing the questions of causation and amount of damages, and the parties understandably have not briefed these contingencies. Moreover, these are issues of Pennsylvania law and perhaps the Pennsylvania courts and/or legislature will soon provide guidance.
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_othadmis
|
A
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
GREEN et al., v. UNITED STATES.
Circuit Court of Appeals, Ninth Circuit.
May 9, 1927.
No. 5006.
I. Criminal law <@=>1072 — Rule forbidding writ of error, unless assignment of errors is filed, is only rule of practice (Circuit Court rule ID.
Circuit Court rule 11, requiring that no writ of error shall be allowed, unless assignment of error has been filed, is not jurisdictional, but is only a rule of practice.
2. Criminal law <@=>424(0— Statements of defendant not on trial to officers while under arrest held admissible, where evidence connected him with conspiracy (National Prohibition Act [Comp. St. § 1013814 et seq.]).
In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), statements which certain defendant not on trial made to government officers while under arrest were admissible, where evidence tended to connect such defendant with conspiracy charged, notwithstanding that he was not on trial with other defendant; it not even being necessary that he should have been indicted in order to render declarations admissible.
3. Criminal law <@=>423(9) — Testimony of defendant in conspiracy prosecution relative to division of profits held admissible, as statement of one performing services in furtherance of conspiracy.
In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 1013814 et seq.), testimony by defendant, who had pleaded guilty and was called as witness for government relative to division of profits by members of conspiracy, obtained during conversation with bookkeeper, held admissible as statement of one performing services in furtherance of conspiracy and concerning method of operation of defendants.
4. Witnesses <@=>256 — Denying possession to defendants of memoranda used by witnesses to refresh recollection, or separation of portions, held not erroneous, in view of opportunity for inspection (National Prohibition Act [Comp. St. § 10138(4 et seq.]).
In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), denial to defendants of right to possession overnight for inspection of volume containing memoranda of conversations overheard by government witnesses tapping telephone wires, and for separation of portions of book used to refresh recollection of witnesses, held not erroneous, where there was no denial of opportunity to inspect complete volume.
5. Criminal law <@=>650 — Denying application for experimental test of 'witness’ ability to identify voices over telephone held not abuse of discretion (National Prohibition Act [Comp. St. § 101381/4 .et seq.]).
In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 1013814 et seq.), wherein government witness testified to conversations heard on tapping telephone wires, refusal of application for permission to make experimental test of witness’ ability to identify voices heard over telephone held not erroneous, as being within discretion of lower court.
6. Witnesses <@=>326, 330(1) — Refusal, on cross-examination to impeach rebutting testimony, to require' witness to write certain words, held proper (National Prohibition Act [Comp. St. § 101381/t et seq.]).
In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), refusal, on cross-examination to impeach, rebutting testimony, to require witness to write certain words which he had denied to have written on exhibits shown to him held proper, as not proper cross-examination, and as constituting impeachment of impeaching witness.
7. Witnesses <§=>52 (7) — Wife of defendant charged with conspiracy to violate prohibition law held competent witness (National Prohibition Act [Comp. St. § 10138% et seq.]).
Wife of defendant in prosecution for conspiracy to. violate National Prohibition Act (Comp. St. § 10138% et seq.) held competent to testify as witness in his behalf.
8. Criminal law <§=>1186(4) — Excluding testimony of wife of one defendant charged with conspiracy tending to show alibi, held not'to require reversal under ievidence (Judicial Code, § 269, as amended by act Feb. 26, 1919 [Comp. St. § 1246]; National Prohibition Act [Comp. St. § IOf.38% et seq.]).
In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 10138% et seq.), exclusion of testimony by wife of one of defendants, tending to establish alibi as to certain defendants, held not ground for reversal, under Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. § 1246), in view of uncontradieted evidence showing complicity of such defendants in conspiracy charged.
9. Conspiracy <§=>48 — Evidence of conspiracy to violate prohibition law held for jury as to one defendant (National Prohibition Act [Comp. St. § 10138% et seq.]).
Evidence in prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 10138% et seq.) held, as pertaining to. one defendant, sufficient for jury.
10. Jury <§=>103(6) — Denial of challenge to jurors who had formed opinion held not erroneous, where they stated opinion would be disregarded (Rem. Comp. Stat. Wash. § 331).
Under Rem. Comp. Stat. Wash. § 331, relative to acceptance of juror who has formed or expressed opinion, denial of challenge to" jurors who had formed opinion, but stated that it was not fixed opinion, and could be disregarded, and that they would render verdict according to evidence, held not erroneous.
11. Criminal law <§=>1059(3) — Failure to except to court’s charge as comment on evidence precludes consideration on appeal.
Failure of defendants to except to charge of court on ground that it constituted a comment on the evidence precludes consideration thereof on appeal.
Rudkin, Circuit Judge, dissenting.
In Error to the District Court of the United States for the NQrthem Division of the Western District of Washington; Jeremiah Neterer, Judge.
Charles S. Green and others were convicted for conspiracy to violate the National Prohibition Act (Comp. St. § 10138% et seq.), and they bring error.
Affirmed.
George F. Vanderveer, of Seattle, Wash.,( for plaintiffs in error.
Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
Rehearing denied July 18, 1927.
GILBERT, Circuit Judge.
The plaintiffs •in error here are others of the defendants who were convicted on the trial of the indictment which was under consideration in the ease of Olmstead et al. v. United States (No. 5016) 19 F.(2d) 842. They bring the case to this court .upon a separate writ of error.
A motion is made to dismiss the writ of error on the ground that the record contains no assignments of error. The writ was allowed and service of citation was had on March 8, 1926. Whether an assignment of errors was filed at the same time does not appear from the record, but the record shows that on May 6, 1926, by stipulation of counsel, an “amended assignment” of errors was filed in the court below. The case was not docketed in this court until November 10, 1926. We are inclined to the view, expressed by Judge Baker in Hultberg v. Anderson (C. C. A.) 203 F. 853, that the requirements of rule 11 that no writ of error shall be allowed unless an assignment of errors has been filed is not juris- . dictional, but is only a rule of practice. Such, also, was the view expressed by Judge Denison in Miller v. United States (C. C. A.) 300 F. 529. The motion is denied.
Error is assigned to the admission in evidence of statements which certain defendants not on trial made to government officers while under arrest; said statements having, it is said, no purpose or tendency to promote the objects of the conspiracy, such as the statements of Capt. Jack Rhodes, made at the time of the seizure of the Eva B, as charged in the ninth overt act of count 1. He stated that the Eva B had gone to a point in American waters and there loaded a cargo of liquor, and had then gone to a point in Canadian waters to await an opportunity to bring the liquor into the United States under cover of darkness. Objection was made to the testimony as hearsay. The court, in overruling the objection, instructed the jury that the statement was not to be considered against any of the other defendants under any circumstances, unless it was shown that„there was a conspiracy entered into as charged in the indictment, and that, unless it were shown that there was a conspiracy between the defendant Rhodes and some of the other defendants on trial, or all of them, they could not consider it under any circumstances. It is to be noted, also, that the statements of Rhodes were but corroborative of those of Erickson and Green as to the movements of the Eva B, which statements were received in evidence without objection.'
At the close of the trial the defendants moved to withdraw from the consideration of the jury the ninth overt act for want of competent evidence to sustain it. The motion was denied, but the court instructed the jury that statements by any of the defendants, either to officers of the law or others not involved in the conspiracy, not made in furtherance of the conspiracy, were to be considered as evidence only against the parties making the same, and if such parties were not then on trial the jury should disregard the same. If there was error in that instruction, it was error in favor of the defendants, for evidence had been received tending to connect Rhodes with the conspiracy charged, and, such being the case, his acts or declarations were admissible. That he was not on trial with the other defendants was immaterial, Clune v. United States, 159 U. S. 590,16 S. Ct. 125, 40 L. Ed. 269; Isenhouer v. United States (C. C. A.) 256 F. 842; Reeder v. United States (C. C. A.) 262 F. 36; Sprinkle v. United States (C. C. A.) 141 F. 811; United States v. McKee, 3 Dill. 546, Fed. Cas. No. 15,685. And to render the declarations admissible it was not even necessary that he should have been indicted, United States v. Cole, 5 McLean, 513, Fed. Cas. No. 14,832. The assignments of error directed to evidence of statements made by Curry, Fletcher, Bennett, and Graignic, who also were defendants, but not on trial, come within the principles above announced, and require no further discussion.
"We find without merit, also, the assignment as to the testimony of McLean. McLean was a defendant who had pleaded guilty and was called as a witness for the government. He testified, among other things, that he had a conversation with Bennett, the bookkeeper, who was a defendant, but not on trial, concerning the division of the profits, in which Bennett said: “Eleven men put in $1,000 apiece. It was not just a personal conversation. My duties did not call upon me to know anything about that, but it came up one day in my general work.” This was objected to on the ground that it was a statement not made in the course oí business by any of the defendants on trial. It was a statement, however, of one who was performing services in the furtherance of the conspiracy, and it concerned the method of operation of the defendants.
Error is assigned to what is said to have been the refusal of the trial court to permit full and free opportunity to inspect the volume of memoranda of conversations overheard by witnesses listening in on telephone wires. We search the record in vain for evidence of-error under this assignment. The defendants requested an order of the court to turn over to them the book of memoranda containing 700 pages, that they might take it into their possession and inspect it overnight, for purposes of cross-examination on the following day. Again they requested that those portions of the book which had been used to refresh the recollection of the witness Whitney be in some way separated from the remainder of the book and be surrendered to them for inspection. These requests were denied, but there was no denial of opportunity to inspect the volume.
For the purpose of impeaching the witness Corwin, the defendants made application for permission to make an experimental test in open court, or elsewhere, in the presence of court and jury, of Corwin’s ability to identify voices heard over the telephone. The denial of the application is assigned as error, but we think it was within the court’s discretion. 22 C. J. 756. The request for leave to make the experiment was not an offer to show as a scientific fact the impossibility of recognizing voices in conversations over the telephone, but was a demand that the witness be required to subject himself to a test of his ability to recognize voices, under conditions to be created which, in the very nature of things,-could not be identical with conditions under which he had heard the voices to which he testified. Such an experiment would not tend to enlighten a jury, and could only tend to confusion by the creation of collateral issues. It is common knowledge that the recognition of voices heard over telephone wires depends upon many and diverse conditions. In such an experiment as was requested, there could be no certainty of obtaining the conditions under which the witness had listened to conversations, and in any such experiment recognition of the voices would largely depend on the tone force and projective quality of the speaker’s voice, the strength of the electric current, and the absence of disturbing sounds. What was said in United States v. Ball, 163 U. S. 662, 673, 16 S. Ct. 1192, 1196 (41 L. Ed. 300), is applicable here: “The granting or refusal of such a request, first made in the midst of the trial, was clearly within the discretion of the court.”
It is assigned as error that the court restricted the cross-examination of the witness Fryant, and excluded the defendants’ offer to impeach his testimony. Behneman had to some extent been associated with Fryant, a prohibition officer, in listening in on the wires. He subsequently left that service and associated himself with the defense, and he told Olmstead that he had been listening in on his wires, and later he appeared as a witness for the defendants. Fryant had testified as a witness for the prosecution. Behneman’s testimony contradicted Fryant’s in some particulars. Fryant was called in rebuttal and contradicted several of the items of Behneman’s testimony. On his cross-examination, to impeach his rebutting testimony, Fryant was shown three of the defendant’s exhibits, and he denied that certain words thereon were written by him. Defendants’ counsel then asked him to write those words. This was objected to as not proper cross-examination, and as impeaching an impeaching witness. The same objection was made to the attempted cross-examination of Fryant on Exhibits B-l to B-27. Those exhibits had not been received in evidence. They had been offered for identification, but excluded by the court as incompetent. We find no error in the rulings. They were clearly sustainable on both grounds of objection.
Under our decision in Rendleman v. United States, 18 F.(2d) 27, the wife of a defendant in the present case was competent to testify as a witness in his behalf. The question arises whether it was reversible errdr to exclude the testimony of Green’s wife, which was offered to show that she, her husband, and the defendant Wm. P. Smith were at Portland, Or., in 1924, from July 7 to September 9, inclusive, or the testimony of Harvey’s wife, offered on behalf of the defendants Harvey and. Thompson, to show that in 1924, continuously from July 3 to July 10, inclusive, she and her husband were at a place 80 miles distant from Seattle. As it affects the defendant Smith it is very clear that the exclusion of Mrs. Green’s testimony is no ground for reversal. The purpose of it was to prove an alibi as against two features of the evidence against Smith:
First, the testimony of Corwin that Smith admitted to him that he' was in the wholesale liquor business at 3116 Eastlake avenue until the early part of September, and the testimony of Whitney that Smith admitted to him that he had lived at 3116 Eastlake avenue, Seattle, “from the month of July on,” and that Smith admitted the truth of Whitney’s statement that he (Whitney) had found on Smith’s premises, when raided on November 26, 1924, “a very good history of Smith’s liquor transactions.” The papers so found were admitted in evidence and they contained entries of liquor transactions, bearing dates of July 7 to*' July 14, inclusive. Among the papers was the lease of the premises to Smith, which he signed and acknowledged at Seattle on July 14,1924, as attested by the notary’s certificate. These papers show conclusively the untruth of testimony that Smith was in Portland on those dates.
The other evidence against Smith, sought to be disproved by the proposed proof of alibi, was that which related to Smith’s arrest in Seattle on September 7,1924. Jones, a police officer, testified that he had been cautioned to keep his eye on Smith; that he observed suspicious movements by Smith on September 7, 1924, at and near the Georgetown police station, in Seattle; that Smith got into his car, the number of which was 130,947, and started away, that the officer followed him until Smith reached a point where there was a Cadillac car in which were 3 men and 18 cases of liquor; that Smith came along with no lights; that about two blocks away he commenced to switch his lights off and on; that the officer answered by a similar switching of his lights; that Smith drove up, and the officer arrested him and the men in the Cadillac; and that Smith said to the officer that it was Olmstead’s car and booze and that they were on their way to Portland.
There was contradiction by another witness, who testified that on that morning he heard Smith state to Jones at the Georgetown station that he had come back to get the two Cadillac cars which were being held at the station, which he said belonged to Olmstead. Obviously testimony of Green’s wife that Smith was at Portland on September 7 could have no probative value to disprove the well-established fact of his arrest by a public officer in Seattle on that date. Neither that fact, nor the evidence of the circumstances which attended the arrest, has been disputed by any witness, unless it be by the testimony • of Green’s sister, who, as a witness for the defendants, testified that Green, his wife, and Smith came to Portland on September 7,1924 —evidence wholly inconsistent with the offered testimony of Green’s wife that they went to Portland on July 3 and remained there until September 9.
As to the defendant Green, the only evidence which the proposed alibi would have tended to contradict was the testimony of Cor-win that he saw Green visit Olmstead’s house during the latter part of August and the early part of September, 1924. That was a very unimportant portion of the evidence against Green. There was undisputed testimony that Green was early associated with Olmstead, and that he actively participated in the importation of liquors in furtherance of the conspiracy. He was one of the crew of the Eva B when she was seized on October 5, 1924, while carrying a large cargo of liquors. Whitney testified that, at the time of the raid of the Olympic Repair Shop on September 11, 1924, the defendants Kern and Green said: “We are in the whisky business all right; but we don’t like to go to jail, unless you catch some whisky on us. You didn’t get us this time; you are too soon.”
Whitney testified further than Green stated to him in November, 1924, that he and Kern had been in the whisky business, and had been on the Eva B at the time when she was captured in Canadian waters. There was other testimony of Green’s association with the Olmstead group, and of his presence at a meeting of them at Olmstead’s house on November 17, 1924. There was undisputed evidence that Green’s house had been used as an office for the disposition of liquor, and that telephone calls that came to the house would be relayed either by Green or his wife to Smith or to the defendant Carroll.
The purpose of the testimony so offered as to the defendants Harvey and Thompson must have been to contradict the testimony of government witnesses concerning conversations between the said defendants overheard on the telephone on July 4, 5, and 10, 1924, conversations which indicated participation on the part of both in the work of the conspiracy. But, aside from the testimony as to those conversations, there was abundant and convincing evidence of the complicity of both of said defendants in the conspiracy, evidence which is in no particular contradicted. McLean testified that about May 1,1924, he was hired by Thompson at a salary of $50 per week to work for Olmstead in taking liquor orders over the telephone, and that Olmstead later raised the weekly pay to $100, that he worked with Thompson taking the morning shift, while he took the afternoon shift.
There was evidence that Harvey was one of the defendants who invested $1,000 in the venture at the beginning, and that it was he who about the middle of July, 1924, told McLean that the wires had been tapped. It was shown, also, that Harvey was one of the defendants present at the garage on Lenora street when it was raided on April 17, 1924, and a truck containing 80 eases of liquor was seized, and that on many occasions he was seen with Olmstead at the Olympic Repair Shop, a place of rendezvous of the defendants. There was the testimony of McPherson, a disinterested witness, as to Harvey’s activities at the Mercer Street Garage at a time when a number of the defendants were unloading small square sacks from a truck, and the defendant Nicholles'stated that there were 400 cases of whisky there which had come on a truck, and that daily during the months of July and August, for 12 or 14 days, liquor was brought into that garage. Whitney testified to two conversations which he overheard between Thompson and Harvey on July 11, one at 2:56 p. m., and the other at 5:56 p. m., referring to the business of selling and delivering liquor, in which Harvey said, “Well, Dan’s stuff is ready;” and Thompson replied, “All right; send it out.”
We cannot believe that the exclusion of this offered testimony, testimony which was under the ban of the common law, is ground for reversal of the judgment as to any of the defendants. The evidence of the complicity of Smith, Harvey, and Thompson in the conspiracy is direct, convincing, and wholly uneontradieted. The jury must have decided the issues upon the broad lines of that testimony, and it is not believed that their verdict could have been affected by the evidence offered to show that at certain dates they were not at the places where witnesses for the government said that they were. If any defendant or any witness had denied any of the testimony adduced by the government, so that the jury would have been called upon to weigh conflicting testimony, the proffered evidence of an alibi might have been sufficient to affect the result, and its exclusion would have been error, requiring reversal.'
But, while the ruling of the court below may have been technical error, we think it was error which did not affect the substantial rights of any defendant. Under section 269 of the Judicial Code (Comp. St. 1919, § 1246), a conviction is not reversible for errors on the trial where the defendant’s guilt is clear. Haywood v. United States (C. C. A.) 268 F. 795; Rich v. United States (C. C. A.) 271 F. 566; Jones v. United States (C. C. A.) 296 F. 632; Fitter v. United States (C. C. A.) 258 F. 567; Raine v. United States (C. C. A.) 299 F. 407; Hobart v. United States (C. C. A.) 299 F. 784; Simmons v. United States (C. C. A.) 300 F. 321; Shuman v. United States (C. C. A.) 16 F.(2d) 457; Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185.
It is contended that the defendant Wm. P. Smith was merely a customer of the 01m-stead gang, and not a partner or agent, and that his “motion for a directed verdict should have been granted.” We do not find in the record that such a motion was made or denied,_ or that a ruling thereon is assigned as error. It would be a sufficient answer to such an assignment, if it had been made, to point to the evidence against Smith which has just been adverted to.
Error is assigned to the denial of the defendants’ challenge of certain of the jurors for actual bias. While it was shown that they had heard about the case, and some of them had formed an opinion as to the guilt or-innocence of the defendants, all admitted in substance that it was not a fixed opinion, that it could be disregarded, and that they would endeavor to render a verdict according to the evidence, under the instructions of the court. We think there was no error. Section 331, Washington Compiled Statutes (Remington), provides: “Although it should appear that the juror challenged has formed or: expressed an opinion upon what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.” We are not convinced that there was abuse of discretion in denying the challenge. Spies v. Illinois, 123 U. S. 131, 8 S. Ct. 22, 31 L. Ed. 80.
It is contended that the trial court erred in commenting on the evidence and in attributing to the witness McLean the testimony that $1,000 was subscribed and contributed by each “of 11 of the men and $11,000 by Olmstead to promote the enterprise, and it is asserted that McLean did not so testify, but testified merely that he had been so informed by one of the defendants. It is sufficient answer to this contention, which to us seems trivial, to point to the fact that no exception was taken to the charge on the ground now presented. Nor do- we find that the court went beyond permissible limits in commenting on the testimony, or that any exception was taken specifically to any expression of the court’s discussion of the evidence.
The other points made on behalf of these defendants have been considered in the opinion in the case of Olmstead v. United States (No. 5016) 19 F.(2d) 842, and are not discussed herein.
We find no error. The judgment is affirmed.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_appbus
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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 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.
UNITED STATES v. JANKOWSKI et al.
Circuit Court of Appeals, Second Circuit.
October 29, 1928.
No. 91.
Manton, Circuit Judge, dissenting.
Michael J. Maher, of Buffalo, N. Y. (John J. Carlo, of Buffalo, N. Y., of counsel), for plaintiffs in error.
Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Harold E. Orr, of Buffalo, N. Y., of counsel), for the United States.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge
(after stating the facts as above).
If the story of State Trooper Gibbons be taken as true, and it would seem to be more likely to be so than the interested account of the defendant Binkowski, we must assume that the troopers were patrolling the roads to secure the observance of state law and to detect its violation. A part of their duty was to see that persons driving motor vehicles complied with section 286 of the New York Highway Law (Consol. Laws, c. 25), which requires the display of proper headlights on all automobiles. Gibbons testified that the car which Jankowski drove had—
“one light on and the other flickering; * * * that they stopped this car to notify the driver to fix his lights; * * * that, after he stopped the defendant’s car, he asked him for his license card and at that time saw a blanket across the knees of the defendants that he knew was the property of the state of New York; * * * that thereafter the two defendants got out of the car and * * * as they got out he noticed underneath the blanket was a package on the floor; * * * that he asked the defendant Binkowski what it was and that both defendants said ‘it was whisky.’ * * * He then asked the defendants if they had any more than what was in the front and Jankowski then opened the back end of the coupé and there were 16 eases altogether of ‘Golden Wedding’ whisky and that he then placed them únder arrest and took them to Jamestown.”
This version of what occurred shows no illegal seareh, nor, indeed, any seareh at all. While engaged in ordinary police work for the state, the troopers saw the package which the defendants said contained whisky. Thereafter the defend'ants, knowing that they were caught, confessed that they had other whisky aboard the ear, and opened the rear of the car and disclosed the contents.
The claim that the seareh was illegal can only be based on the opening of the door of the car by the trooper. But when a policeman, without any protest, opens the door of an automobile to talk to the owner, it certainly goes beyond all reason to say that he is engaged in an unlawful seareh. It may often be the most convenient way either to look at a registry card or to talk to the driver about the condition of his headlights.
Nor is it necessary, because the lights were not ultimately found to be defective, to assume that the motive for stopping the ear was to'make an unlawful seareh for contraband liquor. They may have temporarily been dim because of some irregularity in the electric current, or the officers may have been mistaken. The avowed purpose for stopping the ear and opening the door was to enforce state regulations, and the discovery of the whisky was incidental.
In such circumstances, any officer who saw the defendants in the act of committing a crime would have the power to make an arrest.
The plaintiff in error relies on the decision in Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381. It was there held that, when state officers were making a search and seizure without probable cause and solely for the purpose of aiding in the enforcement of the federal law, the evidence could not be used in the federal courts, because the sole purpose of the search was to aid in the prosecution of a federal offense. Here, according to the testimony of Gibbons, the purpose of stopping the car was to enforce the observance of the state laws, and the information gained thereby was incidental and obtained without any seareh.
The only remaining consideration is whether the story of Gibbons, on the faith of which the trial judge admitted the evidence, was credible, and whether, even if it was prima facie credible, the jury, in view of the conflict of testimony, should not have been allowed to pass on whether the facts constituted an illegal search.
It cannot be doubted that the testimony of Gibbons was credible. It was only met by the story of one of the defendants under indictment for the offense charged. Gibbons is not shown to have had any interest in misrepresenting the facts, whereas the interest of the defendants was patent. Consequently there was sufficient ground for the admission of the testimony by the trial judge.
If, as we find, the testimony was properly admitted by the court, it,would be contrary to all proper rules of evidence to allow the jury in effect to pass on its admissibility and to determine whether any legal search was made. The question as to the lawfulness of the search relates to admissibility of evidence, and was for the court only. While we are referred to no decision relating especially to the rule as to admissibility of evidence in search and seizure cases, the general rule is as we have indicated. Gila Valley G. & N. R. Co. v. Hall, 232 U. S. 94, 34 S. Ct. 229, 58 L. Ed. 521; Commonwealth v. Culver, 126 Mass. 464; State v. Leo, 80 N. J. Law, 21, 77 A. 523.
We find no error in the record, and the judgment of conviction is accordingly affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
STATHATOS et al. v. ARNOLD BERNSTEIN S. S. CORP. THE MARIA STATHATOS.
No. 115, Docket 22512.
United States Court of Appeals Second Circuit.
Argued Jan. 5, 1953.
Decided March 11, 1953.
See, also, 87 F.Supp. 1007.
Wilbur E. Dow, Jr., New York City (Dow & Symmers, Morris Douw Ferris and Daniel L. Stonebridge, all of New York City, on the brief), for petitioners-appellants.
Phillip W. Haberman, Jr., New York City (Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for respondent-appellee.
Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.
CLARK, Circuit Judge.
This proceeding was originally commenced by a petition filed in the district court on December 14, 1949, by the present appellants herein to compel arbitration of their differences with the Arnold Bernstein Steamship Corporation under the arbitration clause of a charter party chartering their vessel, the S.S. “Maria Stathatos,” to the respondent for the carriage of coal. The nature of the original dispute as to the coverage of the arbitration clause is set forth in the opinion of Judge Irving R. Kaufman ordering arbitration, reported in D.C.S.D.N.Y., 87 F.Supp. 1007. The arbitration thus ordered went forward and the arbitrators rendered an award in favor of the petitioners, confirmed in a total sum (including interest and costs) of $83,051.56 in a final decree by Judge Bondy on October 22, 1951. On or about March 6, 1952, petitioners commenced an action in the Supreme Court of New York by summons dated February 29, 1952, to collect upon the award. On March 25, 1952, respondent filed a notice of motion in the district court to vacate the final award and decree because it was discovered that the legal firm of one of the arbitrators had on occasion represented the plaintiffs. It is from Judge Noonan’s order granting this motion, vacating the prior award and ordering a resubmission to arbitration, that the petitioners now appeal.
Respondent suggests doubt as to the finality of the order and its appeal-ability, an issue we must face at once. The authorities appear to show that the order is unappealable, since it does not finally determine any claim. Both the parties and the court below have treated the proceeding as a continuous one throughout, and all the orders have been entered and docketed on that basis. This practical interpretation of the law would appear in line with the view stated by Judge L. Hand for this court in Murray Oil Products Co. v. Mitsui & Co., 2 Cir., 146 F.2d 381, 383, where he said that arbitration is “merely a form of trial, to be adopted in the action itself, in place of the trial at common law: it is like a reference to a master, or an ‘advisory trial’ under Federal Rules of Civil Procedure, Rule 39(c).” So he went on to hold for the court that hence an attachment at the beginning of suit in a state court removed to the federal court was not dissolved by the order to proceed to arbitration and the ultimate arbitration.'
There seems no reason to question Judge Hand’s conclusion, particularly in view of his careful discussion of the problem. Thus he considered whether the express provision in the Arbitration Act, 9 U.S.C. A. § 8, for retention of jurisdiction to final decree upon the award in a proceeding begun by libel in admiralty and seizure of vessel or property suggested a different rule in other proceedings, and concluded to the contrary. The procedure for a stay pending arbitration, 9 U.S.C.A. § 3, which obviously contemplates a continuing action, likewise should not be held exclusive. The steps leading to arbitration and beyond are all of similar purpose and intent; they should not be confused or embarrassed by the development of distinctions resting on no more than whether the initiative is taken by a promisor evading arbitration or a promisee seeking it. So Judge Augustus N. Hand has ruled for our court, in a proceeding started just as this by a petition to compel arbitration, that an order directing arbitration is not appealable. In re Pahlberg Petition, 2 Cir., 131 F.2d 968, and see the proceedings below, Petition of Pahlberg, D.C.S.D.N.Y., 43 F.Supp. 761 and 2 F.R.D. 533. In this Judge Hand followed Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989, which happened to be a suit initiated by the promisor. While the order now at bar is a vacation of a prior award, it is in essence one which continues the proceeding for arbitration, just as do the orders in the cases just cited. The compulsory portions of these orders being the same, there seems no ground for distinctions here based upon the procedural mechanics which led to the orders.
The issue would therefore seem ruled by the precedents cited to deny appealability to this one step in the continuing process of arbitration here going forward. It is to be noted that a like result has been reached in New York under this same uniform Act and the requirement for a final judgment for appeal to the Court of Appeals under N.Y.C.P.A. § 588-3. Industrial Union of Marine & Shipbuilding Workers of America, Local 39, C. I. O. v. Todd Shipyards Corp, 300 N.Y. 549, 89 N.E.2d 518, dismissing an appeal from 275 App.Div. 651, 86 N.Y.S.2d 663, where the court had ordered the matter sent back to the arbitrator; and Atlantic Rayon Corp. v. Goldsmith, 302 N.Y. 842, 100 N.E.2d 40, dismissing an appeal from 277 App.Div. 554, 100 N.Y.S.2d 849, where the court had continued motions to vacate and affirm an award for consideration and report on the issues by an official referee. We find no countervailing precedents; obviously such final district court actions as granting or refusing administrative subpoenas are not in point and contain no suggestion against the traditional federal rule disfavoring piecemeal appeals.
Some suggestion is made that the action below may be beyond jurisdiction, since 9 U.S.C.A. § 12 states that the notice of a motion to vacate must be served within three months after the filing of the award. Whatever the bearing of this upon our action at this juncture, it seems clear that this being essentially a motion for relief against a judgment, as under F.R. 60 (b), 28 U.S.C., the court has jurisdiction, even though there might conceivably be error in the court’s refusal to apply the statutory limitation. While denial of a motion under F.R. 60(b) may lead to an appealable order of the grounds therein taken, see United States v. Wissahickon Tool Works, 2 Cir, 200 F.2d 936, it seems apparent, as stated in 3 Moore’s Federal Practice 3278, 1st Ed. 1938, that grant does not. At most the process leads only to a new trial, a step settled to be not reviewable. See Barbarino v. Stanhope S. S. Co, 2 Cir, 150 F.2d 54; F.R. 59, 73(a).
This result discouraging disruptive and delaying appeals seems thus not only compelled on authority, but desirable as aiding effective use of the arbitration process. Appellate interference with district court approaches toward an as yet unrealized final adjudication can be justified only on the ground of probable error which should be speedily corrected. Even in the normal case, the chance of error, as shown by our actions in reversing the lower court, is only about one out of four. See Ann.Rep. Director Adm. Off. of U. S. Courts 1952, Table B 1, p. 112, and this same table in reports for earlier years. This small ratio of probable error is rendered obviously much smaller here where the order requiring the new submission was so far discretionary as to make reversal unlikely, even though we might have ruled otherwise in the first instance. And continuance of the arbitration, turning here essentially only on the amount of the damage, is likely to render present objections moot and fairly academic. The delay already in excess of eight months to press this interlocutory appeal shows the disruptive possibilities to the administrative process of encouragement to appellants such as petitioners here. Error, if any, is.fully correctable upon appeal after final judgment; there is no reason for precipitate appellate interference by mandamus or otherwise, In re Chappell & Co., 1 Cir. 201 F.2d 343; and the new arbitration should now go forward wjthout delay.
Appeal dismissed.'
. The New York statute, N.Y.C.P.A. § 1459, which provides, as does the federal Act, 9 U.S.C.A. § 6, that any application to the court shall be made and heard, unless otherwise provided, as are “motions,” takes the additional precaution of defining arbitration as a “special proceeding,” obviously in the light of the distinction made between “action” and “special proceeding” in N. Y. General Construction Law §§ 11 — a, 46-a. The broad definition of action in F.R. 2, and see also F.R. 1, makes such a differentiation unnecessary federalwise.
. We need not stop to consider whether this is entirely an admiralty procedure to which the civil rules are inapplicable, since the admiralty rule as to vacating judgments is certainly not dissimilar. See, e.g., W. E. Hedger Transp. Corp. v. Ira S. Bushey & Sons, 2 Cir, 155 F.2d 321, 323, certiorari denied 329 U.S. 735, 67 S.Ct. 100, 91 L.Ed. 635. (The time limitation by local rule therein referred to lias been eliminated in later rules revisions because of F.R. 6 [c] and 28 U. S.C. § 452.) F.R. 60(b) is one of the rules recommended for adoption in admiralty in a report of a committee of the Maritime Law Association of the United States in its Doc. No. 363, Sept. 1952, p. 3613.
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_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.
GREAT ATLANTIC & PACIFIC TEA CO. v. GROOMS.
No. 6625.
United States Court of Appeals Fourth Circuit.
Argued Oct. 14, 1953.
Decided Nov. 5, 1953.
Paul M. Macmillan, Charleston, S. C., for appellant.
R. M. Hollings, Charleston, S. C. (Meyer, Goldberg & Hollings, Charleston, S. C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This appeal is taken from a judgment for $5,000 in favor of Clifton M. Grooms on account of injuries suffered by him while engaged as an employee of the Great Atlantic and Pacific Tea Company in setting tile in the wall of a store of the company in Charleston, South Carolina. The company had elected not to operate under the South Carolina Workmen’s Compensation law, and in consequence could not defend the suit on the ground of the negligence of its employee or of his fellow employees or on the ground that the employee had assumed the risk of the injury. See South Carolina Code, 1952, § 72-118. The case was tried by the judge without a jury and the whole question for decision is whether under the terms of Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the judge was clearly wrong in finding from the evidence that the company was negligent in that it failed in its duty to furnish its employees a safe place to work.
Grooms was an experienced carpenter. He was directed by his foreman, a fellow employee, to place some sheets of tile board upon the wall of the store which was at the time open for business. For this purpose he was directed to stand upon a ledge facing the wall seven and a half feet above the floor. The wall was first covered with an adhesive substance so that the sheets which were four feet wide and twelve feet long adhered to the wall when pressed against it by the carpenter and his helper.
The area to be covered ran from a line seven and a half feet above the floor to the ceiling which was thirteen feet high. The ledge upon which the workman stood was less than twelve inches in width. It was formed by placing boards upon a series of two by four inch timbers which projected twelve inches horizontally from the wall and were designed to support a shelf to be used in connection with lighting fixtures to be installed in the store. The work consisted in lifting the sheets and pressing them against the flat surface while standing on the narrow ledge. The work was fatiguing and from time to time the plaintiff descended from the ledge to rest. At the end of five hours, while handling a sheet of tile with the aid of his helper, he lost his balance and in jumping to avoid implements on a meat block beneath him, he landed in the aisle of the store and was injured.
It seems obvious to us as it did to the District Judge that the ledge was an unsafe place to stand while doing the work and that the employer failed in the duty imposed upon it by the South Carolina law to furnish its employees with a reasonably safe place to work. Nuckolls v. Great Atlantic & Pacific Tea Co., 192 S.C. 156, 5 S.E.2d 862. The finding of the District Judge was based in part upon testimony which showed that before beginning the work the carpenter expressed the opinion that a scaffold was needed and that with the consent of the foreman, some timbers were brought into the store to build it, but later the foreman changed his mind and directed the carpenter to go on with the work in the manner described. The conclusion of the court that the employer failed in its duty to furnish to its employees a safe place to work was clearly correct.
The appellee, however, contends that the case is governed by the “simple tool” doctrine that an employer is not ordinarily liable for defects in tools of simple construction, because usually no danger to the employee is to be apprehended from defects therein and because the employee has a better opportunity than the employer to observe the defects, if any, and guard himself against them. This rule was approved for the reasons stated in Tucker v. Holly Hill Lumber Co., 200 S.C. 259, 20 S.E.2d 704. See also Langston v. Fiske-Carter Const. Co., 180 S.C. 113, 185 S.E. 62; Newbern v. Great Atlantic & Pacific Tea Co., 4 Cir., 68 F.2d 523, 91 A.L.R. 781.
It is manifest, however, that the facts give no place for the application of the doctrine in this case. In Tucker v. Holly Hill Lumber Co., supra, a simple tool is described as an instrument of manual operation. In the instant case no tools were required but only a place to stand on to do the work, boards being used for this purpose, and the deficiency which led to the accident lay in the mechanical arrangement of the place in which the work was done. In that respect the facts resemble those in Boling v. Woodside Cotton Mills, 171 S.C. 34, 171 S.E. 9, where ladders defectively braced were used to install heavy overhead pipes and it was held that although a ladder may be considered a simple tool, the faulty arrangement of the equipment amounted to a failure to furnish a safe place to work. See also Nance v. Swift & Co., 180 S.C. 470, 186 S.E. 389.
Moreover, it may be doubted whether the “simple tool” doctrine, which has been described as merely an application of the doctrine of the assumption of the risk, may now be invoked in South Carolina by an employer who having rejected the Workmen’s Compensation statute of the state is denied the right to defend any suit instituted by an employee on the ground that the employee had assumed the risk of injury. In Tiller v. Atlantic Coast Line R. R. Co., 318 U.S. 54, 63-64, 63 S.Ct. 444, 87 L.Ed. 610, it was held that the “simple tool” doctrine and other vestiges of the assumption doctrine were swept into the discard by the Federal Employers’ Liability Act; and in Bath Mills, Inc., v. Odom, 4 Cir., 168 F.2d 38, we pointed out the similarity in cases of negligence between the defenses available to an employer under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., and those available to an employer in South Carolina who has elected not to operate under the South Carolina Workmen’s Compensation law.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
George SCHULZ, Plaintiff-Appellant, v. SERFILCO, LTD., Defendant-Appellee.
No. 91-1873.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 10, 1992.
Decided June 17, 1992.
Earl D. Yaffe (argued), Yaffe, Mark, Barliant & Ganellen, Chicago, Ill., for plaintiff-appellant.
Thomas R. Palmer (argued), Palmer & Wardell, Schaumburg, Ill., for defendant-appellee.
Before KANNE, Circuit Judge, WOOD, Jr., Senior Circuit Judge, and SHARP, District Judge.
The Honorable Allen Sharp, Chief Judge, United States District Court for the Northern District of Indiana, sitting by designation.
HARLINGTON WOOD, Jr., Senior Circuit Judge.
George Schulz, the plaintiff-appellant, sued his former employer, Serfilco, Ltd., the defendant-appellee, in district court claiming he had been constructively discharged July 1989 because of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. Schulz asserted he was 66 years old at the time of discharge; that he had worked continuously for Serfilco since June 1971 except for the period September 1971 to October 1972, when he was ill because of exposure to polyvinyl chloride (“PVC”) fumes, including phosgene, generated in the machine shop where he had been assigned to work; that, as a consequence of this work-related illness, he received a workers-compensation award; that Serfilco knew PVC fumes caused his illness and, subsequently, had assigned him to work only in areas of the plant where he was not exposed to PVC fumes; that in July 1989 he was ordered to work in the machine shop for the first time since 1971; that he declined because he would again be exposed to PVC fumes; and that his immediate supervisor, Michael Berg, ordered him to work either in the machine shop at his then-current wage or elsewhere in the plant at a reduced wage, or be fired. Schulz “chose” the last option and was replaced by a twenty-seven year old whose salary was fifty-two percent of Schulz’s.
The suit proceeded routinely under the Federal Rules of Civil Procedure and the Local (denominated “General”) Rules for the United States District Court for the Northern District of Illinois. Discovery was completed within one year, and Serfil-co moved for summary judgment pursuant to Fed.R.Civ.P. 56. Local Rule 12(m) requires movants for summary judgment to “serve and file[, inter alia,] ... a supporting memorandum of law [and] a statement of the material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law....” If the moving party does not comply, the motion may be lost: “Failure to submit such a statement constitutes grounds for denial of the motion.” Local Rule 12(m). Serfilco complied by filing with its motion a supporting memorandum of law and a detailed statement of uncontested facts. The statement was indeed detailed; it contained 129 enumerated, “uncontested facts” and 34 “supporting documents,” including affidavits from Michael Berg and Serfilco’s General Manager of Operations, Frank J. Ferraro, the two Schulz claimed had discriminated against him because of his age.
Schulz, represented by an attorney, Earl D. Yaffe, answered Serfilco’s motion and filed his own “Memorandum of Plaintiff in Opposition to Defendant’s Motion for Summary Judgment” and an accompanying 100-page document titled “Exhibits and Supporting Documents on Behalf of Plaintiff in Response to Defendant’s Motion for Summary Judgment.” In the memorandum he expressly admitted seventeen of Serfilco’s 129 enumerated statements of “uncontested facts” and denied or contested, in one form or another, thirty-seven others. Unfortunately for Schulz, he did not deny or otherwise contest Serfilco’s other seventy-five statements of fact, including statement No. 126, which stated age was not a factor in Serfilco’s dealings with Schulz:
126. At no time during their dealings with Plaintiff did either Ferraro or Mike Berg consider Plaintiff’s age or make any decisions based upon it. The age of any employee, including that of Plaintiff, is—and was—of no significance to either Ferraro or Mike Berg. (Ferraro Aff., par. 25; M. Berg Aff., par. 8).
By not denying the “fact” asserted in Serfilco’s statement No. 126, Schulz ran afoul of Local Rule 12(n), which places essentially the same requirements—and consequences for failure to comply—on a party opposing a motion for summary judgment as Local Rule 12(m) does on the moving party. The district court applied the rule strictly and deemed Schulz to have admitted that age was not a factor in his alleged constructive discharge. But age must be a factor under the ADEA:
It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age....
29 U.S.C. § 623(a)(1). See, for example, Skagen v. Sears Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir.1990), and Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 657 (7th Cir.1991) (en banc). Consequently, the court granted Serfilco’s motion for summary judgment.
Schulz appeals. He does not challenge the rule itself; he does not argue that the rule cannot be strictly applied; nor does he argue that the fact stated was an ultimate issue of fact, beyond the reach of Local Rule 12(n). Rather, he argues that throughout his memorandum in opposition to the motion for summary judgment he alleged age was a factor, that we should find he constructively denied the “fact” in Serfilco’s statement No. 126, and that summary judgment should not have been granted because there are contested issues of fact. Because the District Court for the Northern District of Illinois has regularly applied Local Rule 12(n) and its predecessors as the court did here and because we have previously upheld strict application of that rule, we affirm.
Local Rule 12(n), like Local Rule 12(m), clearly enunciates both what a party, in this instance the opponent to a motion for summary judgment, must do and the consequences for failing so to do.
Each party opposing a Rule 56 motion shall serve and file, [inter alia,] ... a concise response to the movant’s statement. That response shall contain (1) a response to each numbered paragraph in the moving party’s statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.... All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement of the opposing party-
Schulz’s response hardly resembles that contemplated by Local Rule 12(n) and in no way complies with its requirements. In denying statements of fact No. 18-34, 37, 40-45, 73-75, 77-79, 81-82, and 85-89 he did not respond to “each enumerated paragraph” and cited neither the record nor any affidavit. Instead, he cited only Serfilco’s letter of October 3, 1989, to attorney Yaffe offering Schulz reinstatement at full pay with accumulated benefits, a guarantee of no assignment to the machine shop, and a promise not to retaliate for Schulz’s having filed a claim with the EEOC.
More importantly and, as it turned out, fatally, Schulz did not specifically respond to enumerated statements No. 35-36, 38-39, 46-72, 76, 80, 83-84, and 90-129. Because of that omission, the court, pursuant to the “deemer” sentence in Local Rule 12(n), deemed those facts as admitted by plaintiff Schulz. Thus, through the operation of what he terms a pure technicality, Schulz was deemed to have admitted that, as Serfilco had stated in statement No. 126, age was not a factor in the constructive discharge he alleged.
The district court’s limited, although severe action here was not unprecedented. Judges in the Northern District of Illinois have strictly applied Local Rule 12(n) and its predecessors, 12(m) and 12(f), for a number of years. See, for example, Zenith Controls, Inc. v. Automatic Switch Co., 648 F.Supp. 1497, 1502 (N.D.Ill.1986); Home Insurance Co. v. Service America Corp., 662 F.Supp. 964, 966 (N.D.Ill.1987); and Davis v. Frapolly, 756 F.Supp. 1065, 1069 (N.D.Ill.1991), which was decided thirty days before Schulz filed his response.
We have repeatedly upheld the strict application of Local Rule 12(n) and its predecessors. Maksym v. Loesch, 937 F.2d 1237, 1240-41 (7th Cir.1991); Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101 (7th Cir.1990). See also Skagen v. Sears Roebuck & Co., 910 F.2d 1498 (7th Cir.1990). In Appley v. West, 929 F.2d 1176, 1180 (7th Cir.1991), we stated that if the party opposing the motion for summary judgment disputed a movant’s statement, Local Rule 12(n) required that opponent to identify and document the dispute in his or her response to the motion. The opponent in Appley had not; thus, we held, “The district court properly granted [the] motion for summary judgment.” Id.
Schulz argues “that it would [not] be particularly helpful to an understanding of the issues for Schulz to have countered that ‘my age and rate of pay was so the motivation for the decision to put me in the machine shop.' ” That may be so, but the rule requires otherwise: it requires both denial and support for that denial. Furthermore, whether to enforce Local Rule 12(n) strictly or somewhat leniently seems to be within the discretion of the district judge. Bell, Boyd & Lloyd, 896 F.2d at 1103. Accordingly, we find the court did not abuse its discretion in strictly enforcing Local Rule 12(n).
Schulz further argues that “a so-called Statement of Uncontested Facts should be limited to facts that are truly uncontested.” That, too, may be. Schulz, however, has cited no authority for that proposition, and, accordingly, the point is forfeited. Fed. R.App.P. 28(a)(4); Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990). Anyway, Local Rule 12(n) provides the opportunity for an opponent to contest “uncontested facts.”
Because the district court did not improperly deem Schulz to have admitted age was not a factor and because, under the ADEA, discharge must be “because of the individual’s age,” we need not address Schulz’s other arguments that issues of uncontested fact exist. An essential element of his claim is missing; without it the claim can proceed no farther.
Age-discrimination plaintiffs, unlike those who seek the protection of other employment discrimination statutes, occupy a favored position under the law: they “enjoy the right ‘to a trial by jury of any issue of fact’ pertinent to the statutory violation they allege.” Visser, 924 F.2d at 660 (Flaum, J., dissenting; citing 29 U.S.C. § 626(c)(2)). Consequently, “[c]aution is required in granting summary judgment. ...” Id. at 660 (opinion by Posner, J.). Thus, it may appear that, because of a mere technicality, “we have denied the plaintiff in this case a basic right of all mankind: the right to rise at least to the height of failing.” Visser, 924 F.2d at 664 (Bauer, C.J., dissenting). Plaintiff’s trial attorney, who also represented Schulz in this appeal, admitted at oral argument that, unfortunately, he was not “aware of” Local Rule 12(n) at the time he filed Schulz’s response. Still, all need not have been irretrievably lost. Schulz, through his attorney, might have asked the district court for leave to amend or, perhaps, supplement his response; a motion could have been brought under Fed.R.Civ.P. 59(e) to alter the court’s order granting summary judgment, as was done in Beraha v. Baxter Health Care Corp., No. 88 C 9898, 1990 WL 114197 (N.D.Ill. Aug. 1, 1990), affirmed in part, vacated in part, and remanded, 956 F.2d 1436 (7th Cir.1992). We have not been advised that any such resuscitation was attempted; certainly, no such relief was granted.
The order of the district court is
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Peter Joseph CALDARERA, Jr., etc., et al., Plaintiffs-Appellees, v. EASTERN AIRLINES, INC., and United States of America, Defendants-Appellants.
No. 82-3186.
United States Court of Appeals, Fifth Circuit.
May 27, 1983.
Deutsch, Kerrigan & Stiles, Francis G. Weller, Marc J. Yellin, New Orleans, La., for defendants-appellants.
Joseph S. Cage, Jr., U.S. Atty., John R. Halliburton, Asst. U.S. Atty., Shreveport, La., H. Richmond Fisher, U.S. Dept, of Justice, Torts Branch, Civ. Div., Washington, D.C., Elizabeth A. O’Conwell, Asst. U.S. Atty., New Orleans, La., for U.S.
Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn, Edward M. Carmouche, Lake Charles, La., for plaintiffsappellees.
Before RUBIN, GARZA and WILLIAMS, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
After a trial in which the sole issue was the amount of damages caused by the death of three persons in a plane crash, the jury returned a verdict of $937,500 against Eastern Airlines in favor of Peter Caldarera for the death of his mother, wife, and eight-year-old son and a verdict of the same amount in favor of Christopher Moore Caldarera, who was four years old at the time of the disaster, for loss of his mother. The district court returned a verdict under the Federal Tort Claims Act against the United States, as joint defendant, in favor of Christopher for $400,000 and in favor of Peter for $797,480. On post-trial motions, the court refused to alter the jury award in favor of Peter, but reduced the award in favor of Christopher to $600,000. Eastern contends that opposing counsel took an unfair shot at it in closing argument, the trial court improperly excluded evidence of Peter’s remarriage, the verdict was excessive, and the jury should have been polled post-discharge about its verdict because its award of identical amounts on each of the plaintiffs’ entirely distinct claims indicates a misunderstanding of their instructions. We find no reversible error in the trial or in the court’s refusal to interrogate the jury after its discharge, but we grant a new trial on the quantum of damages unless the plaintiffs accept a remittitur reducing the awards to the maxima we consider allowable on the record — $797,480 for Peter and $300,000 for Christopher.
I.
The Caldareras’ counsel concedes that he made an improper argument to the jury. The suit was tried in Lake Charles, Louisiana, home of the plaintiffs and their counsel, the claim against Eastern to a jury, and the claim against the United States to the court. In his final argument, plaintiffs’ counsel told the jury:
Then he [Eastern’s counsel] talked about community standards. He is coming over here from New Orleans and he is going to argue to a jury community standards, to tell you about community standards. Six years ago Mr. Weller’s client took a member of our community’s money for plane tickets. He put them on a plane and killed them. Then they hired a lawyer to come back to this community and tell you three words. I can sum up what Eastern Airlines’ position is in this case in three words. Life is cheap. That is what they told you. Let me tell you something. Life may be cheap in New Orleans, or New York, or wherever Eastern is based, where people will slit your throat on the street to get the money out of your pocket. But life in Southwest Louisiana is precious....
Eastern immediately objected to this patently improper argument, but did not ask for a mistrial. The district judge promptly instructed the jury to ignore the remark. Eastern did not object to the instruction, ask for an additional instruction, or at any time later during the trial seek a mistrial.
The only question for us is whether the judge should have ordered a new trial because the damage done by this inflammatory argument was irreparable. A trial judge is generally better able than an appellate court to evaluate the prejudice flowing from improper jury arguments. His denial of a motion for new trial based on improper statements is reversible only for abuse of discretion. The district judge, who has had long trial experience on both the state and federal bench, was best able to measure the impact of improper argument, the effect of the conduct on the jury, and the results of his efforts to control it. Our review is not only hindsight, but is based on a written record with no ability to assess the impact of the statement on the jury or to sense the atmosphere of the courtroom. Eastern’s failure to move for a mistrial is also significant. By doing so, and by acquiescing in the court’s corrective charge, it got a chance to see the verdict and then to seek to overturn it. Accordingly, we affirm the trial judge’s determination that the effect of the improper argument was sufficiently dissipated by his instruction.
II.
This diversity case was governed by Louisiana law. Louisiana forbids evidence of remarriage in a suit seeking damages for the loss of a spouse. This precept is followed in most other jurisdictions. That rule binds us.
The defendants argue that the Caldareras opened the door to such evidence by testimony concerning whether Peter Caldarera’s emotional problems have persisted since the loss of his mother, wife, and child. They contend that, on cross-examination, they should have been allowed to establish that his more recent emotional difficulties stemmed from his remarriage. These arguments were carefully considered by the trial judge. He found that there were alternative ways to determine, by examining the psychiatrist-witness, whether some of Mr. Caldarera’s problems resulted from causes other than the deaths of his wife, mother and son, and that the prejudicial effect of evidence of the second marriage outweighed its probative value. Fed.R.Evid. 403. His finding is not subject to scrutiny by an appellate Bureau of Weights and Standards that balances the factors gram for gram. The trial court may exercise judgment on the basis of his own opinion of the effect the evidence will have, considering the courtroom surroundings. We do not find reason to question his conclusion.
III.
Eastern contends that the jury’s award of exactly $937,500 in damages for each plaintiff, Peter Caldarera and his son, Christopher, indicates either that the jury misunderstood their instructions or intended to allow that sum to be divided between them. When the jury returned its verdict, the jurors were polled but no inquiry about the amount was requested or made. Seventeen days after the jury had been discharged, Eastern sought to have the court ask the jury the meaning of its verdict. Counsel have found no authority for the court to inquire, after the jurors’ discharge, into whether they really meant what they said. Neither have we. Post-trial inquisition of jurors is not favored, unless there is some showing of prejudicial intrusion into the jury process that may have affected the verdict. We cannot condemn the verdict as defective on its face because the awards were identical, even though the elements of damages sought by the respective plaintiffs differed. The trial court was “satisfied that there was no mistake as to the jury’s intention.” We will not, therefore, order a new trial on a possibility that did not even occur to counsel until the jury had been discharged.
IV.
Eastern argues, alternatively, that the jury verdict should be set aside as excessive. Because the trial judge was required to determine the plaintiffs’ damages and to enter a judgment for that amount against the United States, he calculated independently the recompense due to the plaintiffs for their losses. He recognized that, by his calculations, the jury award to Peter was generous. He chose, however, to grant a remittitur only on the award to Christopher, and he reduced this to $600,000, reasoning that a jury award up to $200,000 more than his own calculation of a reasonable award should be allowed to stand.
For the purpose of assessing damages against the United States, the judge itemized the damages Peter Caldarera suffered as follows:
The trial judge calculated that Christopher had suffered damages of $400,-000 as a result of the loss of the companionship, love, affection, nurture, guidance, and support of his mother, and his physical and mental anguish consequent to his mother’s death. Louisiana law does not give Christopher a cause of action for the loss of his brother and grandmother. The facts found by the district judge affecting the determination of damages are set forth in his opinion. They are, indeed, compelling. The district judge’s assessment of the damages, being findings of fact, are, of course, shielded against reversal unless “clearly erroneous.” Because the assessment of damages for grief and emotional distress is so dependent on the facts and is so largely a matter of judgment, we are chary of substituting our views for those of the trial judge. He has seen the parties and heard the evidence; we have only read papers.
The jury’s assessment of damages is even more weighted against appellate reconsideration, especially when, as in the case of the award to Peter Caldarera, the trial judge has approved it. We do not reverse a jury verdict for excessiveness except on “the strongest of showings.” The jury’s award is not to be disturbed unless it is entirely disproportionate to the injury sustained. We have expressed the extent of distortion that warrants intervention by requiring such awards to be so large as to “shock the judicial conscience,” “so gross or inordinately large as to be contrary to right reason,” so exaggerated as to indicate “bias, passion, prejudice, corruption, or other improper motive,” or as “clearly exceedpng] that amount that any reasonable man could feel the claimant is entitled to.” Nonetheless, when a jury’s award exceeds the bounds of any reasonable recovery, we must suggest a remittitur ourselves or direct the district court to do so. Our power to grant a remittitur is the same as that of the district court. We determine the size of the remittitur in accordance with this circuit’s “maximum recovery rule,” which prescribes that the verdict must be reduced to the maximum amount the jury could properly have awarded.
The loss of a loved one is not measurable in money. Human life is, indeed, priceless. Yet the very purpose of the lawsuit for wrongful death is to fix damages in money for what cannot be measured in money’s worth. Unless we are to accept any verdict, in whatever amount, as a legally acceptable measure, we must review the amount a jury or a trial court awards. Reassessment cannot be supported entirely by rational analysis. It is inherently subjective in large part, involving the interplay of experience and emotions as well as calculation. The sky is simply not the limit for jury verdicts, even those that have been once reviewed.
We look first to the award for Peter Caldarera. Acknowledging the speculation involved both in predicting increases in the minimum wage rate over time and in choosing a discount rate to reduce long-term damages to present value, the district court set a present value of $100,000 on Peter Caldarera’s loss of his wife’s future services. This figure was the estimated cost of replacing those services. Less uncertainty attended valuation of loss of her services from her death until the date of trial. In accordance with the expert testimony of an economist, the trial judge awarded $34,021 for that loss. The parties stipulated that property damage and funeral expenses amounted to $13,459. The trial judge set the total amount allowable for loss of Peter’s wife’s services, funeral expenses, and property damage at $147,021. Because this sum represents an estimate of the economic value of goods and services, without any emotional overlay, the jury’s award for these items of damage should have corresponded closely to this figure. The judge set the amount for Peter’s loss of his 63-year-old mother at $100,000 and for the loss of his eight-year-old son at $150,-000. These awards are generous, but they cannot be viewed as excessive. If we add 50% to each, however, we arrive at an amount that appears to us to be a maximum. Even when we take into account the trauma sustained by Mr. Caldarera as a result of the multiple loss he suffered in a single catastrophe, we consider that the maximum verdict against Eastern that the trial judge should have permitted to stand, without remittitur, for Peter’s loss of his mother was $150,000, and, for the loss of his son, $225,000.
The sum of $400,000 awarded by the trial judge to Peter Caldarera for the loss of the companionship, love, and affection of his wife is substantially greater than any we have discovered for the emotional damages resulting from loss of a spouse save one Seventh Circuit decision refusing to reduce a jury verdict of $419,000 for loss of a husband. While the factfinder may well deem the loss of a spouse more grievous than the loss of a mother or son, and thus deserving of greater compensation, on the record in this case, we consider the sum of $250,000 to be the maximum award that could be allowed for the emotional losses arising from the death of Mrs. Caldarera, apart from the economic loss. This is equivalent to an annuity of $21,231 per year for each year of Peter’s remaining life expectancy for his emotional loss alone. The maximum total sum that we think Peter Caldarera could be awarded is thus computed;
Death of mother 150,000
Death of son 225,000
Death of wife 250,000
Other damages 147.021
$772,021
The district judge awarded a total of $797,480, with a somewhat different allocation of the amounts for individual items. This total is so close to the amount we have computed, albeit in a different fashion, that we affirm the award against the United States. However, the total is likewise, for the reasons we have expressed, the maximum that we think any reasonable jury could have awarded. We find the jury award in excess of this sum to be so gross as to be contrary to reason and must, therefore, reverse the trial judge’s action in denying the motion for a new trial. We do not overlook the calamitous effect of the simultaneous bereavement. While the hurt was literally unmeasurable, we must deal with it in such measure as is here sought and is the law’s only recompense, a valuation in dollars. We, therefore, order a new trial unless Mr. Caldarera is willing to accept a remittitur of the award against Eastern to the total amount of $797,480. We affirm the judgment in his favor against the United States in this amount. If Mr. Caldarera is unwilling to accept the remittitur on the Eastern claim, he may have a new trial on his claim against it.
We must also review the award for Christopher’s loss of his mother. Christopher was then four years old, in normal health, and required no exceptional care. The verdict, even as reduced by the remittitur, exceeds any amount that a reasonable person could have awarded him. Our judgment is that his award should not exceed $300,000, which is equivalent to an annuity of $24,986 a year for each year of his mother’s full life expectancy.
We, therefore, order a new trial of the claims against Eastern unless Mr. Caldarera, as tutor for his minor son, will accept a remittitur of the verdict against Eastern to the amount of $300,000, and, in his own behalf to the amount of $797,480. We affirm the judgment against the United States in favor of Mr. Caldarera for $797,-480, and, reducing the amount to $300,000, affirm the judgment against the United States in favor of Christopher Caldarera.
For these reasons, the case is REMANDED to the district court for further proceedings in accordance with this opinion.
. The case arose out of the crash in New York of an Eastern plane in which 113 of 124 people aboard were killed. In multidistrict proceedings in the Eastern District of New York, the United States conceded liability to the victims of the plane crash for the negligence of air traffic controllers at New York’s Kennedy International Airport. A judgment declaring its liability to the plaintiffs in this case was entered in the Western District of Louisiana, on the same day the jury awarded damages, pursuant to the joint motion of the plaintiffs and the United States. The airline’s liability to all victims of the plane crash was decided by a jury in the Eastern District of New York. The jury’s verdict was affirmed on appeal to the Second Circuit. In re Aircraft Disaster, 635 F.2d 67 (2d Cir.1980). After the liability determination, the damage suits of the individual plaintiffs were returned to the districts in which they had originally been brought.
. United States v. Sudderth, 681 F.2d 990, 996 (5th Cir.1982) (ruling on motion for new trial immune from appeal absent abuse of discretion); Nevels v. Ford Motor Co., 439 F.2d 251, 258 (5th Cir.1971) (disposition of motion for mistrial on basis of improper jury argument reversible only for abuse of discretion).
. A motion for new trial may be served not later than ten days after the entry of judgment on the jury’s verdict. Fed.R.Civ.P. 59(b). By contrast, a motion for mistrial is properly made when the event giving rise to the motion occurs.
. McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183, 186 (La.1961); Lofton v. Cade, 359 So.2d 1074, 1075 (La.App.1978); Evans v. Chevron Oil Co., 438 F.Supp. 1097, 1104 (E.D.La.1977), aff’d without opinion, 616 F.2d 565 (5th Cir.1980).
. Annot., 88 A.L.R.3d 926, 928-37 (1978). Even if the evidentiary rules of New York, the situs of the plane crash, governed admissibility of evidence of Peter Caldarera’s remarriage, that would not avail the defendants. Like Louisiana, New York bars consideration of remarriage to reduce or mitigate damages in a wrongful death action. Id.
. Conway v. Chemical Leaman Tank Lines, Inc., 525 F.2d 927 (5th Cir.), modified on reh’g, 540 F.2d 837 (5th Cir.1976) (state law on admissibility of evidence of remarriage in wrongful death action will be followed in diversity case); Bailey v. Southern Pacific Transp. Co., 613 F.2d 1385, 1388 (5th Cir.) (per curiam), cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42 (1980) (following Texas law that evidence of remarriage not admissible for purposes of mitigating damages in wrongful death action). Contra Papizzo v. O. Robertson Transp., Ltd., 401 F.Supp. 540 (E.D.Mich.1975) (admissibility of evidence of remarriage in wrongful death action is procedural question, governed by federal law).
. Fed.R.Evid. 403 reads:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. Stein v. New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089, 97 L.Ed. 1522 (1953).
. Wilkerson v. Amco Corp., 703 F.2d 184 (5th Cir.1983); O’Rear v. Fruehauf Corp., 554 F.2d 1304 (5th Cir.1977); United States v. Riley, 544 F.2d 237 (5th Cir.1976).
. Caldarera v. Eastern Airlines, Inc., 529 F.Supp. 634, 642 (W.D.La.1982).
. On behalf of Christopher, Peter Caldarera has accepted the verdict as reduced, waiving the right to a new trial.
. See La.Civ.Code Ann. art. 2315 (West Supp. 1982).
. 529 F.Supp. at 637-40.
. Fed.R.Civ.P. 52(a).
. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir.1982).
. Martin v. City of New Orleans, 678 F.2d 1321, 1327 (5th Cir.1982); Shows, 671 F.2d at 934; Bridges v. Groendyke Transport, Inc., 553 F.2d 877, 880 (5th Cir.1977).
. Complete Auto Transit, Inc. v. Floyd, 249 F.2d 396, 399 (5th Cir.), cert. denied, 356 U.S. 949, 78 S.Ct. 913, 2 L.Ed.2d 843 (1958).
. Allen v. Seacoast Products, Inc., 623 F.2d 355, 364 (5th Cir.1980).
. Bridges, 553 F.2d at 880 (emphasis in original).
. Howell v. Marmpegaso Compania Naviera, 536 F.2d 1032, 1034-35 (5th Cir.1976). See, e.g., Shingleton v. Armor Velvet Corp., 621 F.2d 180, 182, 184 (5th Cir.1980) (per curiam) (appellate court remitted jury verdict because of obvious jury miscalculation); Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571, 574 (5th Cir.1979), modified on another ground, 612 F.2d 905 (5th Cir.1980) (trial court directed to enter specified remittitur of jury verdict in amount less than it had previously entered); Abernathy v. Southern Pacific Co., 426 F.2d 512, 514-15 (5th Cir.1970) (trial court directed to enter specified remittitur of jury verdict).
. Carlton v. H.C. Price Co., 640 F.2d 573, 582 n. 14 (5th Cir.1981); Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571, 574 n. 7 (5th Cir.1979), modified on another ground, 612 F.2d 905 (5th Cir.1980).
. See Ayala v. Bailey Elec. Co., 318 So.2d 645, 652 (La.App.), writ issued, 322 So.2d 770 (La.1975) (determining cost of replacing services is one method of measuring value of loss).
. E.g., Cheatham v. City of New Orleans, 378 So.2d 369, 377 (La.1979) (jury award of $200,-000 for 22-year-old widow’s loss of love and affection of 27-year-old husband was reinstated after trial judge reduced award to $50,000); Sibley v. Menard, 398 So.2d 590 (La.App.1980), writ denied, 400 So.2d 211 (La.1981), affd on reh’g, 404 So.2d 980 (La.App.1981) (widow awarded $100,000 for loss of husband’s love and affection); Domangue v. Eastern Air Lines, Inc., 542 F.Supp. 643 (E.D.La.1982) (widow received $100,000 for loss of husband’s love, affection, and companionship after 10-year marriage); Szimonisz v. United States, 537 F.Supp. 147 (D.Or.1982) (widow received $100,000 for loss of husband’s society and companionship); Faust v. South Carolina Hwy. Dept., 527 F.Supp. 1021 (D.S.C.1981) (widow received $60,000 for loss of husband’s love, affection, care, attention, companionship, comfort, and protection); Stanford v. McLean Trucking Co., 506 F.Supp. 1252 (E.D.Tex.1981) (widower of one decedent received $75,000 for loss of wife’s consortium and society, and widower of other decedent received $100,000 for loss of wife’s consortium and society); Abille v. United States, 482 F.Supp. 703 (N.D.Cal.1980) (widow received $55,000 for loss of husband’s care, comfort, and consortium); Wyatt v. United States, 470 F.Supp. 116 (W.D.Mo.), aff'd, 610 F.2d 545 (8th Cir.1979) (per curiam) (widower awarded $111,211 for loss of love, companionship, and consortium of wife with life expectancy of 12.2 years). But see Huff v. White Motor Corp., 609 F.2d 286, 297 (7th Cir.1979) (Total award for loss of husband to whom the plaintiff had been married for 30 years was $700,000. Eliminating pecuniary loss, the court found the balance $414,400 to be for loss of husband’s love, affection, counsel. It said, “Therefore, although we are left with the uncomfortable feeling that the verdict is too high, we think we would be exceeding the limits of our authority if we were to disturb it.’.’).
. This is based on the assumption that Peter Caldarera had a life expectancy of 37.8 years and that the funds could be invested at 8% per annum, which is somewhat less than the current rate paid on 52-week U.S. Treasury bills. The trial judge’s award of $400,000, by the same computation, would be equivalent to an annuity of $33,970 per year. If invested in long-term tax-exempt municipal bonds, now available at a yield of 9% per annum, an award of $250,000 would produce $22,500 a year free of federal income tax, without invading principal, and an award of $400,000 would produce $36,000 annually, without invasion of the principal.
. This is based on the assumption that Mrs. Caldarera had a life expectancy of 42.4 years and that the funds could be invested at 8% per annum, which is somewhat less than the current rate on 52-week U.S. Treasury bills. However, if invested in long-term municipal bonds, the sum could be invested in federally tax-exempt securities yielding 9% per annum and could produce $27,000 a year free of federal income tax without invasion of the principal.
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:
|
songer_const1
|
105
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
William A. HAHN, Plaintiff, Appellant, v. VERMONT LAW SCHOOL, et al., Defendants, Appellees.
No. 82-1483.
United States Court of Appeals, First Circuit.
Argued Nov. 4, 1982.
Decided Jan. 21, 1983.
William A. Hahn, Stoughton, Mass., pro se, with whom Robert C. Hahn, and Hahn & Matkov, Boston, Mass., were on brief, for plaintiff, appellant.
Harrison A. Fitch, Boston, Mass., with whom Peter D. Kinder, and Fitch, Miller & Tourse, Boston, Mass., were on brief, for defendants, appellees.
Before BOWNES and BREYER, Circuit Judges, and HEMPHILL, Senior District Judge.
Of the District of South Carolina, sitting by designation.
BOWNES, Circuit Judge.
Appellant William A. Hahn, a Massachusetts resident, brought an action for declaratory and injunctive relief and damages for breach of contract against defendants-appellees Vermont Law School (VLS), a Vermont corporation, and Thomas Ross, a Vermont citizen and associate professor of law at VLS. The district court dismissed the complaint on a Fed.R.Civ.P. 12(b)(2) motion, ruling that Hahn had failed to establish in personam jurisdiction over either defendant pursuant to the Massachusetts long-arm statute, Mass.Gen.Laws Ann. eh. 223A § 3 (West Supp.1981). We reverse as to VLS and affirm as to Ross.
VLS is a private law school which incorporated in Vermont in 1972, obtained accreditation in 1975, and graduated its first class in 1976. Its only place of business is in South Royalton, Vermont; it has never maintained any campus, office, bank account, mailing address, or telephone listing in the Commonwealth of Massachusetts, nor is it licensed to do business there. Hahn, who received his undergraduate degree from the University of Massachusetts at Amherst, first learned of VLS from an article in the Boston Globe in 1977. At his request the school sent application information to him in Massachusetts. Hahn mailed an application to VLS and on March 22, 1978, the school mailed him an offer of admission. Soon thereafter Hahn mailed his acceptance and a $100 deposit to VLS. He attended VLS during the academic years 1978-79, 1979-80, and 1980-81, and graduated in June of 1981. He currently practices law in Massachusetts.
In the fall of 1980, during Hahn’s third year, he took a course entitled “Secured Transactions.” Ross taught this course and in January of 1981 gave Hahn an “F” on his examination. Hahn unsuccessfully followed various administrative channels at the school in an attempt to have the grade changed. He then filed this suit in which he alleges, inter alia, that his contract with VLS was breached when VLS hired Ross and allowed him to teach without supervision, when Ross used arbitrary grading procedures, and when the VLS administration failed to review and investigate his complaint.
The law of the forum, in this case Massachusetts, applies in determining the amenability to suit of a nonresident in a diversity action. Willis v. American Permac, Inc., 541 F.Supp. 118, 119 (D.Mass.1982) (citing Kahn Paper Co. v. Crosby, 476 F.Supp. 1011 (D.Mass.1979); Caso v. Lafayette Radio Electronics Corp., 370 F.2d 707 (1st Cir.1966)). The relevant portion of the Massachusetts long-arm statute provides that “[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s ... transacting any business in this commonwealth .... ” Mass.Gen.Laws Ann. ch. 223A, § 3 (West Supp. 1981). We have previously noted that Massachusetts courts have construed this statutory language to impose a set of constraints on the assertion of in personam jurisdiction in addition to the constraints imposed by the Constitution. Nova Biomedical Corp. v. Moller, 629 F.2d 190, 192 (1st Cir.1980). The inquiry into jurisdiction is thus twofold and a court may assert jurisdiction only when both of the following questions are answered affirmatively: “(1) is the assertion of jurisdiction authorized by the statute, and (2) if authorized, is the exercise of jurisdiction under State law consistent with basic due process requirements mandated by the United States Constitution?” Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 389 N.E.2d 76, 79 (1979).
The district court held that the Massachusetts long-arm statute did not authorize jurisdiction. The court determined that VLS had transacted business in Massachusetts by sending recruiters into the Commonwealth since 1980 to inform prelaw advisers and undergraduate students about the school. It properly cited Ross v. Ross, 371 Mass. 439, 358 N.E.2d 437, 439 (1976), for the proposition that the statutory language “transacting any business” is not limited to strictly commercial activity. The court found, however, that Hahn’s cause of action did not arise out of this transaction of business because there was no indication in the record that VLS recruiters had visited any Massachusetts colleges while Hahn was an undergraduate. Thus, Hahn’s decision to attend VLS did not result from any recruiting efforts on the school’s part.
The key question is whether VLS engaged in any activity relating to Hahn’s decisions to apply and to attend the school that constituted the transaction of business. The district court seemed to ignore this question, which concerns VLS’ activity during the early months of 1978, and focused instead on recruiting activity two years later which had no bearing on the contract allegedly breached. Although recruiting activity would seem to satisfy the “transacting any business” requirement, this would not preclude other VLS activity from also satisfying the requirement.
In Nova Biomedical, 629 F.2d at 193-94, we relied on several indications in the Massachusetts case law that the language “transacting any business” should be construed broadly. In that case the defendant mailed the Massachusetts plaintiff two letters demanding that it cease and desist from infringing the defendant’s patent and threatening litigation if it failed to do so. We found that the mailing of these letters constituted transacting business; because the defendant had already been conducting some patent-related business activity in Massachusetts and was pursuing a competing line of work there we considered the letters “an attempt ‘to reduce competition and thereby improve the defendant’s marketing position.’ ” Id. at 195 (quoting B & J Manufacturing Co. v. Solar Industries, Inc., 483 F.2d 594 (8th Cir.1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974)). We think that VLS’ actions of mailing application information to Hahn in Massachusetts and then mailing him an offer of admission present a stronger case for finding the transaction of business than the defendant’s actions in Nova Biomedical; VLS’ correspondence was directly with a “customer,” instead of a competitor, and resulted in a contractual relationship expected to last three years.
In Carlson Corp. v. University of Vermont, 380 Mass. 102, 402 N.E.2d 483, 485 (1980), the Supreme Judicial Court stated “[tjhere can be no doubt that physically signing a contract [by all the parties] in Massachusetts is, in literal terms, transacting business in Massachusetts . ... ” This statement was the extent of the court’s analysis of the statutory question; its real attention focused on the constitutional issue. Like the contract before us, the Carlson construction contract called for services to be rendered for a period of time in Vermont. In both cases there was no solicitation and the Massachusetts plaintiff initiated the communications culminating in the contract. We do not see the formal signing of the contract in Massachusetts as being so significant that it would transform a case of no jurisdiction under the statute into a clear-cut case of transacting business. We need not sort out the intricacies of the law of contract formation and conclude that Hahn’s contract with VLS was consummated in Massachusetts in order to hold that VLS transacted business there leading to Hahn’s decision to enroll. Cf. Vencedor Manufacturing Co. v. Gougler Industries, Inc., 557 F.2d 886, 890 (1st Cir.1977) (stating that such contract law technicalities are irrelevant to the central issue of fairness that should guide the application of a long-arm statute providing for jurisdiction to the limits of the constitution). The purposeful actions of VLS in mailing to Hahn in Massachusetts application information and an acceptance letter were sufficient, without more, to constitute transacting business under the broadly construed Massachusetts long-arm statute.
The district court noted that this cause of action for breach of contract stemmed from activities — Hahn’s receipt of a failing grade and his efforts to resolve the matter through administrative channels — occurring in Vermont. Although the Massachusetts courts have not defined the scope of the “arising from” requirement of the long-arm statute, we have no doubt that it has been satisfied when the cause of action is for an alleged breach of contract and the business transacted was instrumental in the formation of the contract. Any determination of whether VLS has breached the contract will depend upon the terms of the contract, and such terms may include statements contained in the application information and acceptance letter VLS mailed to Hahn. See Lyons v. Salve Regina College, 565 F.2d 200 (1st Cir.1977) (construing the language of a College Manual and Academic Information booklet as the terms of a contract between a student and college), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978). It does not require the expansive reading which we have noted other courts apply, see Nova Biomedical, 629 F.2d at 195-96 n. 9, to find that this cause of action arose from the transaction of business in Massachusetts.
Having determined that the assertion of jurisdiction in this case is authorized by the Massachusetts long-arm statute, we proceed to the question of whether the assertion of jurisdiction would comport with the requirements of due process. The well-known case of International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945), and its progeny require us to determine whether the defendant’s contacts with the forum make it reasonable and not unfair to require it to defend against a suit there. The focus is on the interests and activity of the defendant. See generally Note, Long-Arm Jurisdiction in Commercial Litigation: When is a Contract a Contact?, 61 B.U.L.Rev. 375, 377-84 (1981). International Shoe also indicates that less is required to support jurisdiction when the cause of action arises from the defendant’s contacts within the forum, as in this case, than when it does not. 326 U.S. at 317, 66 S.Ct. at 158. We have noted that the formulation of Hanson v. Denkla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958) (“some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws”), and similar labels should not replace a practical factual analysis of the contacts in each case. See Vencedor Manufacturing Co., 557 F.2d at 890.
It is a close question whether VLS, by sending application information and an acceptance letter to Hahn in Massachusetts, has in practical terms invoked the benefits and protections of that state’s laws or “should reasonably anticipate being haled into court [there],” World-Wide Volks wagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). In fact one court, on facts which appear more compelling than in the case at bar, held that a school’s recruiting efforts with respect to an individual student did not subject it to jurisdiction. Cassell v. Loyola University, 294 F.Supp. 622 (E.D.Tenn. 1968). VLS activities with respect to Hahn, however, were not simply isolated occurrences; instead, they were part of VLS’ efforts to serve the market for legal education in Massachusetts. See World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. Over the years students from Massachusetts appear to have consistently comprised close to ten percent of the school’s first-year class; the record indicates that there were twelve Massachusetts students in the 1978-80 first-year class. In 1980 and 1981 VLS faculty members visited five Massachusetts colleges for the purpose of recruiting. The school at times also has placed advertisements in Boston newspapers. Under these circumstances, the assertion of jurisdiction over VLS in Massachusetts does not offend traditional notions of fair play or substantial justice. International Shoe, 326 U.S. at 320, 66 S.Ct. at 160.
As for the defendant Ross, the district court found that he had not performed any recruiting activities on behalf of VLS in Massachusetts. He taught the “Secured Transactions” course solely on the VLS campus. Thus, he had not transacted any business as required by the Massachusetts long-arm statute. In addition, jurisdiction over him cannot be predicated on jurisdiction over VLS. See Selman v. Harvard Medical School, 494 F.Supp. 603, 614 (S.D.N. Y.1980), aff’d, 636 F.2d 1204 (2d Cir.1980); cf. Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 906 (1st Cir.1980) (“The general rule is that jurisdiction over the individual officers of a corporation may not be based merely on jurisdiction over the corporation.”). The district court properly dismissed the complaint against Ross.
Our finding on the issue of jurisdiction over VLS does not, of course, intimate any view on the merits of the case.
Reversed in part, affirmed in part, and remanded.
. For an example of a contract action concerning academic grading, see Lyons v. Regina College, 565 F.2d 200 (1st Cir.1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978).
. It appears that VLS mailed grade reports and tuition bills to Hahn in Massachusetts throughout his three years at the school. If so, this would merely reinforce our finding that VLS was transacting business in Massachusetts. Cf. Good Hope Industries, 389 N.E.2d at 80 (Evidence of transacting business includes mailing invoices to Massachusetts.).
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
WEBB FUEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 14874.
United States Court of Appeals Sixth Circuit.
Oct. 26, 1962.
Richard F. Hooker and Stephen C. Bransdorfer, Grand Rapids, Mich., John W. Cummiskey, George E. Snyder, Grand Rapids, Mich., on brief; Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., of counsel, for petitioner.
Allison W. Brown, Jr., National Labor Relations Board, Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Stuart Broad, Attorney, National Labor Relations Board, Washington, D. C., on brief, for respondent.
Before McALLISTER, Circuit Judge, and BOYD and FREEMAN, District Judges.
ORDER.
This is a petition to review and set aside an order of the National Labor Relations Board finding that the petitioner violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) by refusing to bargain with the Chauffeurs, Teamsters and Helpers Union, Local 364, as the exclusive representative of its office-clerical employees, at a time when petitioner knew that the union represented the then entire office work force, and also violated Section 8(a) (3) and (1) of the act in refusing to reinstate four striking employees upon their unconditional offer to return to work after having engaged in a strike precipitated by petitioner’s unlawful refusal to bargain with the union.
29 U.S.C. § 160(f) in pertinent part, provides: “the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall * * * be conclusive.”
Substantial evidence “is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126, and “it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” National Labor Relations Board v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660.
In the instant case the majority of the board disagreed with the findings and conclusions of the trial examiner relied on for his recommendation that the complaint be dismissed. In this situation the Supreme Court in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, at p. 496, 71 S.Ct. 456, 468, 95 L.Ed. 456, said: “The ‘substantial evidence’ standard is not modified in anyway when the Board and its examiner disagree.”
Applying the substantial evidence test and upon examination of the entire record, this Court concludes that there was substantial evidence to support the board’s findings and conclusions.
The petition to review and set aside the board’s order is denied and enforcement of the order is decreed.
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_usc1sect
|
158
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AUBURN RUBBER COMPANY, Inc., Respondent.
No. 9177.
United States Court of Appeals Tenth Circuit.
Sept. 8, 1967.
Nancy M. Sherman, Attorney, N. L. R. B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and J. Richard Thesing, Attorney, N. L. R. B., on the brief), for petitioner.
B. Thomas May, of Key & May, Albu-. querque, N. M., for respondent.
Before WILBUR K. MILLER, BREITENSTEIN and HILL, Circuit Judges.
Of the District of Columbia Circuit, sitting by designation.
BREITENSTEIN, Circuit Judge.
The National Labor Relations Board petitions for the enforcement of an order issued against respondent Auburn Rubber Company. The prime issue is whether an arbitration award bars Board action.
Auburn makes rubber and plastic products at Deming, New Mexico. It was financed by a $15,000,000 bond issue of the village of Deming. Three million dollars of these bonds were issued to a joint employer-union pension fund in which all participating employers have contracts with the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen, and Helpers of America. After the plant opened, the United Rubber, Cork, Linoleum and Plastic Workers of America and the Teamsters both sought to organize the employees. The Teamsters were certified by the Board and made a contract with the Company for a term expiring December 31, 1962. The contract proved unsatisfactory and on May 14, 1962, the Company and the Teamsters entered into a new contract which ran until May 14, 1964.
In the fall of 1962, the Rubber Workers filed a representation petition. Subsequently, the Board held that the rewritten agreement with the Teamsters did not bar an election because it was a premature extension of an earlier agreement, and ordered an election. About this time some of the employees formed the Deming Employees Association. The Board denied the Association a place on the ballot. The results of the February 27 election were inconclusive. On March 7, the Teamsters presented to the Board charges of unfair labor practices by the Company. A similar complaint filed by the Rubber Workers was later withdrawn.
In April, the Teamsters brought suit in the United States District Court for the District of New Mexico to require the Company to perform the 1962 contract which the Board had held was no bar to the election. The original complaint in the instant proceedings was filed on August 6, 1963, by the General Counsel. A few days later, the federal court in New Mexico ordered the Company to perform the contract. The Company and the Teamsters then agreed to arbitrate certain issues including a number of discharges. The arbitrator held prolonged hearings and in March, 1964, made an award which was approved by the court. Thereafter an amended complaint was filed by the General Counsel before the Board. A hearing was held in April, 1965. The examiner found that the Company had violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by interrogating employees concerning their membership in, and sympathies for, the Rubber Workers or the Teamsters and by making promises and threats. He also found that the Company had violated § 8(a) (2), 29 U.S.C. § 158(a) (2), by participation in the organization and operation of Deming Employees Association. In addition he found that the Company had violated § 8(a) (3), 29 U.S.C. § 158(a) (3), by the discriminatory discharge of six employees because of membership in the Rubber Workers. He held that the six discriminated against should be reinstated with back pay. The Board affirmed with one member dissenting on the ground that binding effect should be given the arbitrator’s determination “that the alleged discriminatees were discharged for cause.”
No good purpose would be served in reviewing the evidence with more detail. We believe that it is sufficient to sustain the findings and decision of the Board. The question is whether the arbitration award bars Board action.
The United States Supreme Court has recognized the value of arbitration in the maintenance of industrial peace. In Carey v. Westinghouse Electric Corp., 375 U.S. 261, 270-271, 84 S.Ct. 401, 408, 11 L.Ed.2d 320, the Court said: “the Board shows deference to the arbitral award, provided the procedure was a fair one and the results were not repugnant to the Act.” The Board, in Spielberg Manufacturing, 112 N.L.R.B. 1080, 1082, announced the policy of honoring arbitration awards when “fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act.” In our opinion the Board has the discretion to defer to, or to reject, the decision of the arbitrator and, in determining whether that discretion has been properly exercised, the tests announced by Spielberg are pertinent.
With regard to the § 8(a) (1) interference charges the position of the examiner, upheld by the Board, was that the written agreement to arbitrate did not cover such charges. Although they were not specifically mentioned in that agreement, they were among the issues presented to the arbitrator by the Teamsters and the Company. Full opportunity was afforded for the presentation of all pertinent evidence. The arbitrator decided in favor of the Company. The attorney for the Teamsters joined with the attorney for the Company in submitting the arbitrator’s award to the court with the request that it be adopted by the court. In our opinion all the Spielberg tests have been met. The award was fair and the result is not repugnant to the Act. The unfair labor charge was filed with the Board by the Teamsters. The incongruous result of the Teamsters’ acquiescence in the arbitration award and of Board action to the contrary on the behest of the Teamsters should be avoided. The situation is not changed by the finding of discriminatory discharges because they were for activities related to the Rubber Workers— not to the complaining Teamsters. We believe that the Board abused its discretion and acted contrary to its established policies in upholding the § 8(a) (1) charges.
The situation is different so far as the § 8 (a) (2) violation pertaining to the Deming Employees Association is concerned. At the hearing before the arbitrator, the attorney for the Teamsters stated that this matter was not submitted for arbitration. The Company accepted this position. The matter was properly presented to and decided by the Board. Its findings of Company par-, ticipation in the organization and operation of the Association are sustained by substantial evidence on the record as a whole.
The real controversy centers in the § 8(a) (3) charges. The Board found that six employees had been discharged discriminatorily because of their activities on behalf of the Rubber Workers and ordered reinstatement with back pay. In the arbitration proceedings the Teamsters presented a number of claims of improper discharges. Included therein were the six in question. These employees were members of the Teamsters because the contract between the Teamsters and the Company contained a union membership clause with a check-off provision. The Teamsters notified the six of the arbitration hearings. They were given an opportunity to appear with their own counsel but declined to do so. The Rubber Workers also chose not to appear in the arbitration because they were not parties to the underlying agreement. Thus, we have a situation in which the six diseriminatees were represented at the arbitration by a union to which they were antagonistic. They preferred to have their rights determined by the Board. The arbitrator, relying on the evidence presented by the Company, held that the discharges were not discriminatory.
At the hearing before the examiner the six testified as to the circumstances surrounding their discharges. The Company relied on the transcript of the evidence taken by the arbitrator. In regard thereto the examiner stated that he could not determine the credibility of witnesses from the transcript. In his decision the examiner found that all six discriminatees were credible witnesses. Their testimony sustains the examiner’s findings that they were discharged because of activities for the Rubber Workers.
In our opinion it would be unfair and repugnant to the Act to bind the six diseriminatees to the arbitrator’s award. They relied on the previously filed unfair labor practice charges, and their representation at the arbitration hearings was by a union other than the competing union in whose behalf they incurred the displeasure of the Company.
Enforcement is denied on the § 8(a) (1) charge and is granted on the § 8(a) (2) and § 8(a) (3) charges.
. The Board’s decision and order are reported at 156 NX.B.B. 301.
. The results were: Rubber Workers, 93; Teamsters 67; neither union, 46.
. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424.
. See Ramsey v. National Labor Relations Board, 7 Cir., 327 F.2d 784, 787, certiorari denied 377 U.S. 1003, 84 S.Ct 1938, 12 L.Ed.2d 1052.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
songer_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
LEWIS v. HUDSPETH, Warden.
No. 1790.
Circuit Court of Appeals, Tenth Circuit.
March 27, 1939.
Jesse A. Hall, of Leavenworth, Kan., for appellant.
Summerfield S. Alexander, U. S. Atty. (Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge.
On May 29, 1934, appellant was charged in an indictment containing two counts, involving offenses under Section 101, Title 18 U.S.C.A., which provides:
“Whoever shall receive, conceal, or aid in concealing, or shall have or retain in his possession with intent to convert to his own use or gain, any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, which has theretofore been embezzled, stolen, or purloined by any other person, knowing the same to have been so embezzled, stolen, or purloined, shall be fined * * *(Italics supplied)
Appellant was found guilty by jury on both counts and duly sentenced to a term of imprisonment of five years on the first count and five years on the second count, the sentence imposed on the second count to commence at the expiration of that on the first count.
On February 22, 1935, the appellant was delivered into the custody of the respondent as warden of the United States Penitentiary at Leavenworth, Kansas, the appellee herein, where he has since been confined.
It appears that he has served five years less 480 days allowed by Section 710, Title 18 U.S.C.A., and less 117 days industrial good time allowed by Section 744a et seq., Title 18 U.S.C.A., his sentence beginning February 12, 1935. The actual time served prior to the time of suing out the writ of habeas corpus is three years and five months, constituting the serving of a five-year term under the statute.
It is contended that said counts state the same offense, operating as double punishment, and that habeas corpus is the proper remedy to raise the question.
In determining whether the same transaction constitutes two or more distinct offenses, the test is ,as to whether each offense requires proof of any fact which the other does not. Chrysler v. Zerbst, 10 Cir., 81 F.2d 975; Belt v. Zerbst, 10 Cir., 82 F.2d 18; Norton v. Zerbst, Warden, 10 Cir., 83 F.2d 677; Weeks v. Zerbst, 10 Cir., 85 F.2d 996; Casebeer v. United States, 10 Cir., 87 F.2d 668; Tanchuck et al. v. United States, 10 Cir., 93 F.2d 534; Burton v. United States, 202 U.S. 344, 377, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362; Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L.Ed. 489; Morgan, Warden of U. S. Penitentiary, Leavenworth, v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Albrecht et al. v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505.
Two counts of an indictment charging separate and distinct federal offenses, the court having jurisdiction of the accused and of the offenses charged, and the sentences imposed being authorized by statute, on habeas corpus inquiry may not be made as to whether the proof supported the charges. Norton v. Zerbst, Warden, supra; Watkins v. Zerbst, Warden, 10 Cir., 85 F.2d 999; Murphy v. United States, 7 Cir., 285 F. 801; United States ex rel. Poch v. Hill, 3 Cir., 71 F.2d 906, certiorari denied Poch v. Hill, 293 U.S. 597, 55 S.Ct. 120, 79 L.Ed. 690.
Said Section 101, Title 18, U.S.C.A., includes two distinct offenses.
To convict the accused on the first count of feloniously retaining the possession of the stolen property, it was not necessary to prove that the accused knew the property was stolen at the time he received it, it being sufficient to establish that he retained it knowing of its stolen character.-
To convict under the second count, it was essential to prove that the accused received and concealed the property, knowing the same was stolen at the time he received and concealed same.
The statute makes it a crime (1) to conceal or receive property, knowing the same was stolen, and (2) to retain property, knowing that the same was stolen, different proof being required as to the two counts.
The judgment of the lower court is affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_origin
|
I
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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.
SIOUX FALLS BROADCAST ASSOCIATION, Appellant, v. ASSOCIATED PRESS.
No. 9904.
Circuit Court of Appeals, Eighth Circuit.
Dec. 12, 1933.
Teigen & Davis, of Sioux Falls, S. D., for appellant.
George J. Danforth and Holton Davenport, both of Sioux Falls, S. D., for appellee.
PER CURIAM.
Appeal docketed and dismissed pursuant . „ * t0 °f Partles;
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_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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.
ESTATE OF Maurice G. TODISCO, Framingham Trust Company, Executor, Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee.
No. 84-1494.
United States Court of Appeals, First Circuit.
Argued Nov. 7, 1984.
Decided March 13, 1985.
Chester M. Howe, Boston, Mass., with whom Gaston Snow & Ely Bartlett, Boston, Mass., was on brief for petitioner, appellant.
Bruce R. Ellisen, Washington, D.C., with whom Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard Farber, Tax Div., Dept, of Justice, Washington, D.C., were on brief for respondent, appellee.
Before CAMPBELL, Chief Judge, McGOWAN, Senior Circuit Judge, and BOWNES, Circuit Judge.
Of the District of Columbia Circuit, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
This is an appeal by the estate of Maurice G. Todisco, through the Framingham Trust Company, its executor, from a decision of the United States Tax Court that there was a deficiency in Todisco’s income tax for the taxable year 1972 of $14,598 plus interest and penalties for negligent underpayment and failure to timely file a return, and that there was no deficiency or overpayment for the taxable year 1973. Estate of Todisco v. Commissioner, 46 T.C.M. (CCH) 35 (1983).
I. FACTS
Maurice G. Todisco was part owner and an employee of a bar. His 1972 and 1973 federal income tax returns reported income earned from the bar but not from a bookmaking business which he also conducted.
Todisco ran the bookmaking operation from April 1, 1972 to April 14,1973. Todisco accepted wagers on sporting events, horseracing and numbers. He employed one Anthony Pellegrino to answer the telephone and record wagers. Pellegrino was the principal witness for the Estate at the trial.
On April 14, 1973, the Massachusetts State Police arrested Todisco for gaming violations. The police seized $5,925.25 in cash at the time of Todisco’s arrest, $26,-000 in cash from Todisco’s safety deposit boxes soon thereafter, and $4,521 from To-disco the following November. Those sums, totalling $36,446.25, were applied in toto to satisfy assessments in like amount against Todisco for state income taxes due on Todisco’s bookmaking income.
At the time of Todisco’s arrest, the Massachusetts police also seized betting slips for the dates April 2-13, 1973. The total gross wagers for those dates were as follows:
Date Gross Wagers
April 2, 1973 $350.84
3 255.75
4 4,509.90
5 11,427.30
6 1.302.00
7 11,647.50
8 10,240.00
9 768.25
10 8,244.25
11 3,067.75
12 5.049.00
13 9,093.50
Copies of the actual betting slips for April 13, 1973 were introduced into evidence before the tax court. Copies of the slips for the dates April 2-12 were in the Commissioner’s possession prior to trial, but were either lost or destroyed and so were unavailable at trial. No other betting slips or other wagering records were found or introduced into evidence, which was to be expected given Todisco’s routine practice of destroying betting slips after two weeks.
On April 13, 1973, the one day for which copies of betting slips are available, Todisco’s book won $4,690.25. and lost $4,140. Todisco’s gross profits were thus $550.25 on gross wagers of $9,093.50, yielding a gross profit percentage of 6.05 percent. The April 13 betting was distributed among basketball, baseball, horseracing, and numbers as follows:
Gross
Gross Bettor Bettor Profit
Bets Lost Won (Loss)
Basketball $7,450.00 $4,065.00 $3,125.00 $940.00
Baseball 330.00 225.00 75.00 150.00
Horses 350.00 857.00 (507.00)
Numbers 50.25 83.00 (32.75)
$9,093.50 $4,690.25 $4,140.00 $550.25
Gross wagers for numbers-and horseracing were not recorded; from the gross wagers on other events, it is possible to determine that the combined gross wagers on numbers and horseracing was $1,313.50. Thus, on that one day, Todisco suffered losses on horses and numbers, and had a gross profit of 12.6 percent on basketball wagers and 45 percent on baseball wagers.
II. TAX COURT DETERMINATION OF TODISCO’S GROSS PROFIT PERCENTAGE
At trial, the Commissioner argued that Todisco’s gross profit percentage to be used in calculating Todisco’s estimated gross income from bookmaking should be ten percent. As Special Agent Avila, the revenue agent assigned to Todisco’s audit, testified, “In reviewing the betting slips, I could see the profit line built right in---It cost you $5.50 to make $5.00.” Avila’s testimony reflected Pellegrino’s earlier testimony that a bettor would have to put up $55 to win an additional $50 on a basketball game.
Todisco’s estate argued that Special Agent Avila’s conclusion that Todisco’s gross profit percentage was ten percent did not follow from the premised odds. It noted that if one posited a basketball game for which the total bets for each side were equal, i.e., a game with a so-called balanced book, with, say, $55 bet on each side, then Todisco would pay out $50 to the winner and collect $55 from the loser, thereby producing a gross profit of $5 on total wagers of $110; assuming a balanced book, then, Todisco’s gross profit percentage would be 4.54 percent. Pellegrino testified that recovering this percentage, known to bookmakers as the “juice,” was Todisco’s intended means of making a profit, and that Todisco, when presented with an especially unbalanced book, would place balancing bets with other bookmakers to reduce his potential exposure should the team more heavily bet on win. The estate also noted that the actual gross profit percentage for April 13, 1973, the one day for which sufficient records were available, was 6.05 percent. The estate argued that the segment of the betting generating the highest gross profits and a higher-than-average gross profit percentage, basketball, was overrepresented in the betting slips for April 13, 1973 because three NBA playoff games, including one involving the Boston Celtics, were played on that date; as Pellegrino testified, bettors would “go wild” during the playoffs. Finally, the estate presented considerable evidence that Todisco’s net worth and lifestyle were inconsistent with the amount of bookmaking income a ten percent gross profit percentage would indicate.
The tax court acknowledged that the Commissioner’s method for calculating To-disco’s gross profit percentage was spurious. It also found from an examination of the betting slips from April 13, 1973 that the factual assumption underlying the estate’s theoretical estimate of Todisco’s gross profit percentage at 4.54 percent, i.e., Todisco’s having kept a balanced book, did not obtain. For example, on the Boston Celtics-Atlanta Hawks game of April 13, 1973, $2,885 was be.t on the Celtics, but only $1,100 was bet on the Hawks. While it is true that Todisco would try to compensate for a particularly unbalanced book by making balancing bets with other bookmakers, the fact that he was willing to accept unbalanced wagers made it impossible in the tax court’s eyes to use 4.54 percent as the best estimate of Todisco’s gross profit percentage. The tax court concluded, “[I]t is impossible, without adequate records, to know what his exact profit percentage was,” but “[a]fter careful consideration of all the facts in the record, with particular emphasis on the spread of profit percentages among the events on April 13, 1973, we find that Todisco’s profit percentage was 8 percent.” 46 T.C.M. at 41.
The estate contends that the evidence does not support a finding that To-disco’s gross profit percentage exceeded 6.05 percent. Since the determination of Todisco’s gross profit percentage is a matter of fact, we examine the finding of the tax court only for the presence of clear error. Taylor v. Commissioner, 445 F.2d 455, 459 (1st Cir.1971). Because we can discover no material support in the record for a gross profit percentage of eight percent (or any other figure in excess of 6.05 percent), we are obliged to conclude that the tax court committed clear error in calculating the 1973 tax deficiency on the basis of a profit percentage of eight percent.
The tax court’s sole stated ground for estimating the 1973 gross profit percentage at eight percent was the spread of profit percentages on April 13, 1973: 45 percent for baseball, 12.6 percent for basketball, and losses on numbers and horseracing. For this spread to be evidence for a higher gross profit percentage than 6.05 percent, the court was required to find either that the profitable bets were systematically underrepresented in the mix of betting for April 13, 1973, or that the various profit percentages were systematically too low, or both. As to the former, the evidence suggests, if anything, that the profitable bets were overrepresented on that date, since April 13 fell both at the beginning of the baseball season, when bets could be expected to be higher, and during the NBA playoffs, in which the Boston Celtics were involved, while numbers and horseracing presumably continued year around or nearly so at constant levels. As to the latter, the only evidence presented was the theoretical estimate based on a balanced book of 4.54 percent for sporting events, and testimony by Pellegrino that Todisco’s profit margins on horseracing and numbers were 5 and 50 percent, respectively, and that baseball wagering generally lost money for bookmakers and was only offered as a service to bettors. Thus, aside from wagering on numbers, which made up only a tiny fraction of the total wagers, the evidence suggests that Todisco’s long-term gross profits were around five percent, as Pellegrino testified; there is, in any event, no evidence that Todisco’s gross profit percentage exceeded 6.05 percent, the amount earned on April 13, 1973.
In support of the reasonableness of the tax court’s eight percent gross profit percentage, the Commissioner makes two arguments. First, he suggests the actual gross profit percentage achieved on April 13, 1973, 6.05 percent, was abnormally low because, as Pellegrino testified, on a typical day, Todisco would not have lost money on horses and numbers. True enough, but Pellegrino’s testimony also suggests that on a typical day Todisco would not have made as much as 45 percent on baseball and 12.6 percent on basketball either. The tax court cannot, at least without some reasonable basis for doing so, select out from Pellegrino’s testimony only those aspects which make for a higher tax.
Second, the Commissioner argues that Todisco’s failure to keep a balanced book on April 13 warrants disregarding the 4.54 percent theoretical estimate and assuming a figure such as eight percent. We disagree. Pellegrino’s testimony was all to the effect that Todisco undertook to keep as balanced a book as possible, and that Todisco’s profit came from the “juice.” Such intentions are admittedly only indirect evidence of their desired result, but they are evidence nonetheless. On the other side of the scale, there is no evidence that Todisco consciously refused wagers because he thought the bettor had picked a winner, that he himself solicited wagers other than balancing wagers with other bookmakers, or that such practices are customary among bookmakers. The mere fact that he did not have a perfectly balanced book with respect to the April 13 basketball games is as easily explained by the difficulty of finding someone in Boston who would cover bets against the Celtics as by some theory that Todisco was skilled at increasing his take by covering only those bets on which he was likely to lose out. For this latter theory to hold water, we think it was necessary for there to be some other supporting evidence. There is none. The only actual evidence is that Todisco’s criterion for refusing or soliciting wagers was their tendency to disturb or create a balanced book.
We recognize that the necessity for estimating Todisco’s income arose from Todisco’s failure to maintain adequate records. This fact inclines us to uphold any reasonably supported estimate made here. Still, there must be some basis for the figure selected. We note, moreover, that records for 11 of the 12 days for which slips were kept were either lost or destroyed while in the custody of the state or the Commissioner. The Commissioner thus bears some responsibility for the lack of evidence upon which to reconstruct taxpayer’s earnings.
Furthermore, this is not a case in which the Commissioner alleges that the few figures available relative to taxpayer’s activities were inaccurate. See, e.g., Truman v. Commissioner, 8 T.C.M. (CCH) 108 (1949). As the tax court stated in Rainwater v. Commissioner, 23 T.C. 450 (1954),
[T]rue, petitioner had destroyed [the original betting slips for all but a two-week period,] and thus has made the Commissioner’s task of auditing the returns immeasurably more difficult than it should be. This is conduct that is not to be condoned. Perhaps the Treasury should seek and the Congress should provide it with appropriate and effective sanctions, civil or criminal or both, against taxpayers who fail to keep or who do away with important records bearing on their liability. But, under the law as it now stands we are not empowered to approve deficiencies merely because records have been destroyed.
Id. at 456. Because the Commissioner has presented no credible arguments or evidence for setting Todisco’s gross profit percentage higher than the 6.05 percent that the extant records indicate, we think the tax court’s finding that Todisco’s gross profit percentage was eight percent was arbitrary and excessive, and so unsustainable. See Helvering v. Taylor, 293 U.S. 507, 514-15, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935). On remand, the tax court should recalculate the estate’s tax liability applying the 6.05 percent figure.
III. ERRONEOUS ASSIGNMENT OF BURDEN OF PROOF
The estate suggests that the tax court erroneously placed the burden of disproving the Commissioner's deficiency calculation on the estate; in so arguing, the estate relies on United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), for the proposition that a “naked” assessment of tax is without validity.
Our response is twofold. First, in light of the fact that the tax court accepted neither the Commissioner’s determination of Todisco’s gross profit margin nor of the amount of his gross wagers, but instead made its own findings, the question of the allocation of burdens seems irrelevant. Second, granting for the sake of argument that the Commissioner’s method of arriving at a ten percent gross profit margin was arbitrary and that the Commissioner shares in the fault along with Todisco for the lack of evidence of Todisco’s bookmaking operations, it is clear nonetheless that Todisco earned bookmaking income in 1972 and 1973. The Commissioner’s present action is thus not a naked assessment of tax.
The Commissioner calculated Todisco’s gross income from bookmaking by taking Todisco’s gross wagers from the period April 2-13, 1973 to be his total gross wagers for an even two-week period, dividing it by two to obtain his average weekly wagers, multiplying the average by the ten percent estimated profit margin to obtain average weekly profits, and finally multiplying the average weekly profit by the number of weeks in 1972 and 1973 that Todisco ran his bookmaking operation to obtain gross income from wagering in those years. We agree with the tax court’s approval of both the commissioner’s general method for calculating Todisco’s gross bookmaking income and his method for calculating Todisco’s gross wagers as reasonable. The fact that the Commissioner’s calculation may have been based in part on an erroneous formula for determining gross profit percentage does not disturb the basic rule in all tax cases that the burden of proof rests on the taxpayer. United States v. Rexach, 482 F.2d 10 (1st Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973). As to the only aspect of the Commissioner’s calculations that might be said to be arbitrary, the determination of Todisco’s gross profit margin to be ten percent (reduced by the tax court to eight percent), this court has already accepted the estate’s argument in the previous section.
IV. STATE TAXES
Section 165(d) of the Internal Revenue Code provides as follows:
(d) Wagering losses. — Losses from wagering transactions shall be allowed only to the extent of the gains from such transactions.
In Offutt v. Commissioner, 16 T.C. 1214 (1951), the tax court held that the predecessor of section 165(d) in the Internal Revenue Code of 1939 limited the deductibility of the mailing, printing, and stenographic expenses of a bookmaker to the amount of his wagering income. Under the authority of Offutt, the Commissioner limited the availability as a federal income tax deduction of the $36,446.25 seized by the Massachusetts State Police in 1973 in payment of state income taxes, which would otherwise be deductible under I.R.C. § 164, to the amount of Todisco’s bookmaking income in 1973. The tax court adopted this position below.
The estate argues that the section 164 deduction for state income taxes is generally not considered an expense “attributable to a trade or business carried on by the taxpayer” for the purposes of calculating adjusted gross income under I.R.C. § 62(1). See 26 C.F.R. § 1.62-l(d); Tanner v. Commissioner, 45 T.C. 145, aff'd, 363 F.2d 36 (4th Cir.1966). 26 C.F.R. § 1.62-l(d) explains that state income taxes are generally not “attributable to a trade or business” because they are too “remotely[ ] connected with the conduct of a trade or business.” Therefore, since they are not attributable to Todisco’s bookmaking for purposes of computing his adjusted gross income under section 62(1), so the estate argues, they are not losses from wagering for purposes of section 165(d). This argument also distinguishes the expenses whose deductibility was held in Offutt to be subject to the section 165(d) limitation, since mailing, printing, and stenography would fall within section 62(1).
As a general matter, we agree with the proposition that state taxes levied on an individual’s net income from all sources are too remotely connected to any wagering income that an individual might have to be subject to section 165(d). In this case, however, the taxes assessed represented amounts confiscated from Todisco specifically for state income taxes due on Todisco’s bookmaking income. 46 T.C.M. at 38. This particular assessment is thus directly tied to Todisco’s bookmaking income, and hence is subject to the limitation of section 165(d). In analogous settings, the IRS has ruled that state individual income taxes on net income from business profits are attributable to a taxpayer’s trade or business for the purpose of computing the amount of any net operating loss carryforward or carryback under I.R.C. § 172(d)(4), see Rev. Rui. 70-40, 1970-1 C.B. 50. Moreover, in direct response to the estate’s argument, the IRS has ruled that state taxes on gross income directly attributable to an individual’s trade or business are deductible for the purpose of determining adjusted gross income under section 62(1). Rev.Rul. 58-142, 1958-1 C.B. 147, reaffd, Rev.Rul. 70-40, 1970-1 C.B. 50. Accordingly, on the facts of this case, we see no reason not to extend the reasoning of Offutt to state income taxes paid by an individual on gambling income.
V. FEDERAL WAGERING EXCISE TAXES
Section 446(b) of the Internal Revenue Code provides as follows:
(b) Exceptions. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income.
The estate argues that the tax court erred in upholding the decision of the Commissioner to compute Todisco’s taxable income from bookmaking on a cash basis. The upshot of that decision is that the ten percent federal excise tax on gross wagers imposed on Todisco in 1973 has never been available as a deduction against Todisco’s income taxes, since it has never been paid. The estate suggests that the taxes accrued in 1972 and 1973, and that the only method of accounting that clearly reflects Todisco’s bookmaking income for those years would be to allow the excise taxes as deductions when accrued.
This argument has one fatal factual flaw: as a comparison of the amount of the excise tax levied ($49,467.04) and the original estimate by the Commissioner of Todisco’s estimated gross wagers for 1973 ($494,670.30) reveals, the excise tax was imposed only on Todisco’s 1973 gross wagers. Since Todisco’s losses and expenses from 1973 bookmaking aside from the excise tax already exceeded his 1973 bookmaking income, and since the estate concedes that federal wagering excise taxes are subject to the section 165(d) limitation, a change of accounting method would have no effect on Todisco’s 1973 taxable income. Furthermore, a change in accounting method could not affect Todisco’s 1972 taxable income, since the taxes accrued in 1973.
The decision of the tax court is affirmed, except for that part pertaining to the deficiency due for the taxable year 1972 and the additional tax due for that year, which are vacated and the cause is remanded to that court for recomputation in accordance with the opinion filed this date.
No costs.
So ordered.
. At another point in his brief, the Commissioner attacks the consistency of Pellegrino’s testimony. The alleged inconsistency arises from his testimony at various points that Todisco’s gross profit percentage was about five percent, but that Todisco's average weekly gross profits were about $500 and his typical weekly gross wagers during non-playoff periods were roughly $2,000. From the latter two figures the Commissioner imputes to Todisco the conclusion that Todisco’s profits were in fact roughly 25 percent, thereby ignoring the fact that the $2,000 figure was stated to be Todisco’s typical weekly gross wagers during non-playoff periods. In light of Pellegrino’s testimony that bettors would be "wild” during the playoffs, thereby greatly increasing the weekly wagers, we find nothing necessarily inconsistent in his testimony.
. As a general matter, expenses that fall within section 62 are taken into account in computing a taxpayer’s adjusted gross income, and hence are available as a deduction to all individuals while most other deductions are used in computing taxable income, and hence are available to an individual only if he or she itemizes, see I.R.C. § 63.
. It should be noted that Massachusetts during 1973 imposed a flat tax on taxable income, using federal definitions of income as its starting point. Mass.Gen.Laws ch. 62, § 4. Because the tax is flat, the amount assessed against To-disco for his bookmaking income is less dependent on the amount of his other income than would be the case under a progressive tax.
. Before the tax court, the estate evidently advanced the argument that the amount of state income and federal excise taxes not available in 1973 because of the section 165(d) limitation could be carried back to 1972 as a net operating loss under I.R.C. § 172(c). The tax court correctly rejected this argument on the grounds that "the section 165(d) limitation means that petitioner has no 'excess of the deductions allowed by this chapter over the gross income’ for 1973, and thus has no net operating loss to be carried back from 1973.” 46 T.C.M. at 45.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
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songer_respond1_7_2
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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").
In re PATE et al. PRUDENTIAL INS. CO. OF AMERICA v. PATE et al.
Nos. 6335, 6362.
Circuit Court of Appeals, Seventh Circuit.
Nov. 9, 1938.
George E. Drach and Wallace T. Filson, both of Springfield, 111., for appellant.
Colfax T. Martin, of Danville, 111., for appellees.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
SPARKS, Circuit Judge.
The holder of a master’s deed to premises sold under foreclosure proceedings appeals from an order of the District Court permitting the farmer-debtors to remain in possession of the premises for a period ending three years after the filing of his original petition for relief under section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203.
The farmer and his wife filed their petition for relief March 15, 1935, three days before the date fixed for a sale of his mortgaged premises under foreclosure proceedings. The District Court restrained the sale, but on June 15, 1935, vacated its restraining order, and the sale was thereupon had on July 15, 1935. On September 9, 1935, the District Court dismissed the bankruptcy proceeding and entered a judgment for costs against each debtor. On June 23, 1936, the court reinstated the proceeding and granted .the debtors leave to file their amended petition praying adjudication in bankruptcy, but on July 2, granted leave to appellant to proceed with its foreclosure in the state court, and authorized the receiver theretofore appointed by the state court to act as such. The order provided, however, that the appellant was not to transfer or assign its master’s certificate, nor was the master to issue his deed until further order of the District Court, which was given November 25, 1936. On May 27, 1937, the debtors filed their petition praying that the master’s deed be set aside and returned to the conciliation commissioner; for an accounting; and that their term of bankruptcy be extended to March 15, 1938. Acting on this petition, the court on June 25^ 1937, ordered that the debtors be allowed to remain in possession until March 15, 1938, under a lease to be entered into between appellant and the debtors, and that appellant was to hold its deed in the meantime without transfer or incumbrance until further order of the court. It is from this order that appellant appeals. Determination of the issue presented depends upon the validity and construction of subsection (n) of section 75, 11 U.S.C.A. § 203 (n), conferring jurisdiction upon the bankruptcy court over all property of a farmer-debtor as to which he has an unexpired period of redemption at the time he files a petition for relief under section 75. The cause was. held in- abeyance by this court pending decision by the Supreme Court of the case of Wright v. Union Central Life Insurance Company, 58 S.Ct. 1025, 82 L. Ed. 1490. That case, decided May 31, 1938, held section 75 (n) constitutional.
It is to be noted here that the sale of the property under the foreclosure proceeding had not even been held when on March 15, 1935, the debtors filed their petition for relief under section 75, nor had the period of redemption expired when on June 23, 1936, the court granted them leave to file their amended petition to pray adjudication in bankruptcy. They thereupon became entitled to an opportunity to comply with the provisions of section 75, subsection (s), 11 U.S.C.A. § 203(s), and to apply for the moratorium provided for by that section. See In re Price, 7 Cir., 99 F.2d 691, decided by this„court, November 9, 1938. The action of the court on November 25, 1936, in permitting the appellant to obtain the master’s deed rendered the relief to which appellees might he entitled nugatory as long as the master’s deed remained outstanding. There is no indication that the court tdok such action because it considered appellees not in -a position to avail themselves of the relief afforded by section 75 (s), but it merely stated that it appeared that the period of redemption had expired. In reconsidering its order, on petition of appellees, the court stated that the proceedings under section 75 (s) were still pending, and it apparently felt that there was a possibility of rehabilitation although it did not enter & finding to that effect, hence that its action in permitting the deed to issue was contrary to the intent and purpose of Congress. It then corrected its former action as it had power to do under the rilling in Wayne Gas Company v. Owens Company, 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557. There was no error, in this, and the decree is
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_crmproc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
Albert BROWN, Plaintiff-Appellant, v. FINANCIAL SERVICE CORPORATION, INTERNATIONAL, a Georgia corporation, Defendant-Appellee.
No. 72-3002.
United States Court of Appeals, Fifth Circuit.
Feb. 7, 1974.
Arnold D. Schatzman, Herbert Stettin, Miami, Fla., for plaintiff-appellant.
Carl H. Hoffman, Miami, Fla., for defendant-appellee.
Before AINSWORTH, DYER and IN-GRAHAM, Circuit Judges.
INGRAHAM, Circuit Judge:
This Florida diversity case presents questions of basic contract law. Plaintiff-appellant Albert Brown filed suit against Financial Service Corporation, International (FSC), a Georgia corporation, alleging that it breached its contract to repurchase certain stock which had been issued to Brown while he was employed by the company’s wholly owned subsidiary, Financial Service Corporation of America. FSC counterclaimed for the balance due on a promissory note held by it and executed by Brown in November 1968 shortly after he became employed by the company. Although we fundamentally disagree with the district court’s reason for granting summary judgment to FSC on Brown’s claim, we affirm that decision and also affirm the lower court’s summary judgment award to FSC on its counterclaim.
I.
The operative facts are undisputed. In November 1968 negotiations between FSC and Brown culminated in Brown’s employment by the company as a senior vice president and director of its subsidiary, Financial Service Corporation of America. The compensation package arranged for Brown included a $40,000 a year salary plus bonuses, a new or used Cadillac, and, most significantly for our purposes, an agreement to sell Brown 4000 shares of FSC’s non-publicly held stock at $5 a share. Brown began work in mid-November of 1968. In late May 1969 William Branch, FSC’s assistant secretary and the person in charge of issuing the company’s stock, wrote a letter to Brown concerning the 4000 shares of stock to be issued pursuant to the employment bargain. This letter summarized the ways in which the stock purchase could be financed, as well as describing the various steps necessary to finalize the transaction. Enclosed with this letter was the Stock Purchase Agreement which set forth the specific terms of the purchase. This document is the source of the present difficulties.
The controversial provision deals with the disposition of the stock when the purchaser ceases to work for the company. For ease of reference we will call this the repurchase provision, and it provides:
“When, for any reason, Representative’s employment with the Company terminates, the Company shall have one year from the date of such termination to repurchase any shares sold under this agreement for their fair market value at the time of such repurchase, which fair market value shall be the price adopted for the Company’s stock by the Board of Directors of the Company in the most recent meeting of the Board preceding the termination of Representative’s employment at which such action was taken. This option to repurchase shall be exercised by the Company sending written notice of its intent to exercise to Representative at his last address as shown on the Company’s records. Such notice shall specify the time, place, and manner in which the repurchase shall occur. Thereafter, at the time and place and in the manner so specified the Company shall make payment for the stock to be repurchased in cash or by check and Representative shall, immediately upon making of such payment, deliver to the Company valid title to said stock and all certificates evidencing said stock free of all claims, liens, and encumbrances of any nature whatever.”
In response to Branch’s letter Brown called Branch sometime between May 29, 1969 and June 6, 1969, to discuss the stock purchase transaction. Although the content of this conversation is in dispute, all agree that it took place and that it precipitated a letter from Brown to Branch which accompanied the signed stock purchase agreement when it was returned, via the mails, to Branch’s office in Atlanta. This cover letter, dated June 6, 1969, discussed several matters relating to the purchase, but the significant element at this point is the reference to the repurchase or termination of employment clause; Brown wrote as follows:
“I wanted also to confirm the discussion you and I had yesterday on the phone on questions that I had raised. Referring to the termination of employment clause in the stock purchase agreement, while it is stated that the company shall have one year to repurchase any shares, we agreed that the company would repurchase almost immediately after termination. if
Branch received Brown’s letter but took no further action other than to issue the 4000 shares of stock once the financing had been arranged.
In the fall of 1969 the relationship between Brown and FSC began to deteriorate and it was agreed, on what appear to be rather amicable terms, that Brown’s employment would end on January 15, 1970. For reasons not entirely clear and unnecessary to relate in order to resolve the present appeal, Brown and FSC encountered problems in settling up following his termination. Although FSC was at one time willing to repurchase the stock for $10 a share and hold the proceeds until a final determination was made of amounts allegedly owed to FSC by Brown, Brown would not agree to this offer. FSC subsequently decided that its. financial condition was such that it would not repurchase the stock. Left with 4000 shares of apparently unmarketable stock, Brown filed suit in November 1970 seeking damages from FSC for the alleged breach of its contract to repurchase the stock. He also alleged that the company had failed to sell him the additional 1000 shares mentioned in the employment agreement, thus reasoning that FSC was liable for the difference between the purchase price of this stock and the price due upon repurchase. In addition to denying liability FSC counterclaimed for $11,600, asserting that Brown was liable for this amount as the unpaid balance on a promissory note executed by Brown and held by FSC.
After the parties stipulated that the case was a proper one for summary judgment, the trial court granted FSC’s motion in Brown’s suit and in its counterclaim. The court decided that the pa-rol evidence rule precluded it from considering anything other than the stock purchase agreement to determine whether FSC had a duty to repurchase Brown’s stock. The court reasoned as follows:
“Upon reading and analyzing paragraph 3 [the repurchase clause] the Court is convinced that the company was not obligated to repurchase but merely possessed an option. There is no ambiguity in the stock purchase agreement; its terms are clear. The cover letter of June 6, 1969 and any conversations between Brown and Branch prior to [or] contemporary to the stock purchase agreement may not vary its terms. The parol evidence rule . . . precludes varying an unambiguous written agreement by evidence of a contemporaneous oral understanding. . . .”
Rejecting Brown’s defense that he was not liable for the balance due on the note because FSC had breached the employment agreement of which the note was an integral part, the court held for FSC on its counterclaim.
The significant issue on appeal is, stated broadly, whether the trial court erred in holding that FSC did not have a duty to repurchase the 4000 shares of stock. Although we take an altogether different view of the case than did the trial court, we reach the same result regarding FSC’s obligation to repurchase. Other issues raised concern FSC’s asserted liability on the 1000 additional shares of stock and the propriety of the court’s holding on the counterclaim. Because of our resolution of the repurchase issue against Brown, there is no need to consider his contention relative to the 1000 shares, and we affirm without further discussion the court’s holding that Brown is liable on the promissory note.
II.
The flaw in the trial court’s analysis is its implicit conclusion that the stock purchase agreement represented the complete agreement of the parties and that therefore Brown’s cover letter had no legal significance according to the parol evidence rule. The parol evidence rule is a rule of the substantive law of contract, and its purpose is to preserve the sanctity of a written agreement once it is determined that the writing fully states the agreement of the parties. See South Florida Lumber Mills v. Breuchaud, 51 F.2d 490 (5th Cir., 1931), cert. den., 284 U.S. 659, 52 S.Ct. 37, 76 L.Ed. 558; Everglade Lumber Co. v. Nettleton Lumber Co., 111 Fla. 333, 149 So. 736 (1933); Sears v. James Talcott, Inc., 174 So.2d 776 (Fla. App.1965). Of necessity then the first question is whether the writing fulfills this function so as to be an integration of the parties understanding. Carolina Metal Products Corp. v. Larson, 389 F.2d 490 (5th Cir., 1968); Florida Capital Corp. v. Robert J. Bissett Const. Inc., 167 So.2d 595 (Fla.App.1964); see G. Grismore, Principles of the Law of Contracts, § 94 (J. Murray ed. 1965). To answer this question a court should consider the writing as well as 'the circumstances surrounding its execution, Florida Capital Corp. v. Robert J. Bissett Const. Inc., supra, at 599, and parol and extrinsic evidence may be used in making this determination. Carolina Metal Products Corp. v. Larson, supra, 389 F.2d, at 493. We hold that Brown’s cover letter should have been considered as a part of the parties’ agreement concerning the terms of the stock purchase. See Johnson v. Smith, 84 So.2d 722 (Fla.1956); Holcomb v. Bardill, 214 So.2d 522 (Fla.App.1968).
Without doubt a covering letter may constitute a part of the total agreement. Gateway Co., Inc. v. Charlotte Theaters, Inc., 297 F.2d 483 (1st Cir., 1961); see Johnson v. Smith, supra; Fraser v. Lewis, 187 So.2d 684 (Fla. App.1966). Here the cover letter itself clearly establishes that its purpose was to summarize in writing the content of a telephonic conversation concerning the purchase agreement; the cover letter specifically discusses terms of the stock purchase agreement. Moreover, the letter not only accompanied but was a cover to the signed stock purchase agreement when it was returned to Branch’s office in Atlanta, And finally, Branch realized that at least to some extent the letter modified the terms of the purchase agreement. In short, the existence of the cover letter and the circumstances surrounding the execution of the stock purchase agreement preclude the conclusion that it was intended by the parties as the final memorial, the integration, of their understanding concerning the terms of the stock sale. Consideration of the cover letter would not, therefore, violate the parol evidence rule because the cover letter was a part of the contract. For this reason it was erroneous for the trial court to reject the cover letter when determining the rights and liabilities of the parties under the purchase agreement.
III.
The decision that the parties’ contract is embodied in both the cover letter and the stock purchase agreement does not, of course, end the matter. For now there are arguably inconsistent contractual provisions dealing with the same subject matter — that is, the rights and duties of the parties on the purchaser’s termination of employment. We agree with the trial court that the stock purchase agreement standing alone does not impose a duty on the company to repurchase Brown’s stock. The problem is that the cover letter says “we agree that the company would repurchase almost immediately after termination.” Interpreting these words in the manner urged by Brown would lead to the conclusion that this language means that the company had an obligation to repurchase the stock and that this repurchase must occur immediately after termination. Two duties are thus created: (1) the duty to repurchase; and (2) the duty to do so immediately after termination. Obviously this interpretation is in direct conflict with the interpretation of the agreement as giving the company an option to repurchase but imposing no affirmative duty.
There is, however, another interpretation which could be accorded to this language from the cover letter. Rather than treating this statement as creating two duties, it could-be interpreted as imposing only a duty on the company to exercise its option immediately on termination. In the circumstances of this case it is this interpretation which we adopt as representing the intention of the parties at the time this contract was consummated. We reach this conclusion on the basis of the following analysis in which we apply several well established principles for the interpretation and construction of contracts.
The first principle is that in interpreting contractual language to determine the rights and obligations of the parties to the agreement the contract must be considered as a whole in an effort to give meaning to all of its provisions. See Union Central Life Ins. Co. v. Neuhoff, 157 Fla. 98, 24 So.2d 906 (1946); Blackshear Mfg. Co. v. Fralick, 88 Fla. 589, 102 So. 758 (1925). See generally 3 Corbin on Contracts, § 549 (1960). Florida courts have long recognized that “[i]f clauses in the instrument are repugnant to each other, they must be reconciled, if possible . . . . ” McNair & Wade Land Co. v. Adams, 54 Fla. 550, 45 So. 492, 493 (1907). To interpret the language in Brown’s letter as creating a duty in the company to repurchase his stock would render completely nugatory one of the crucial provisions of the document which he signed and returned to FSC. We would have to totally disregard the language in the purchase agreement conferring an option to the company to repurchase. By interpreting the disputed language in Brown’s letter as going only to the time of repurchase rather than establishing such a duty, we afford meaning and significance to all parts of the contract. This interpretation also fulfills our duty to reconcile provisions which at first glance appear repugnant to each other.
The principle that conflicting provisions should be reconciled in order to give meaning to all parts of the contract might not warrant interpreting Brown’s language as we have. Another established rule of contract interpretation, however, is that courts may look to subsequent action of the parties to determine the interpretation that they themselves placed on the contractual language. LaLow v. Codomo, 101 So.2d 390 (Fla.1958). The conduct of both parties subsequent to Brown’s termination leaves us convinced that neither FSC nor Brown believed that the company had an affirmative duty to repurchase his shares.
The voluminous record made on the parties’ cross-motions for summary judgment is replete with correspondence from Brown to FSC and vice versa. A good portion of these communications deal directly with the disposition of Brown’s stock. Understandably since Brown would have received $40,000 from the sale, he was anxious for this to occur so that he could retire the note negotiated to finance the purchase in the first place. But none of his many letters exhorting the company to hurry up and repurchase his stock speak in terms of an affirmative obligation on the part of FSC. Likewise, when FSC offered to repurchase and hold the proceeds until the final accounting was completed, the offer spoke in terms of FSC’s right to repurchase instead of a duty to do so. Brown even mentioned in two letters to two different officers of FSC that he might hold the stock until the company went public. The extensive correspondence between Brown and FSC simply does not support the interpretation now sought by Brown. Considering the contract as a whole, the circumstances surrounding its execution, and the conduct of the parties subsequent thereto, our conclusion is that this contract does not impose a duty on FSC to repurchase the 4000 shares of stock issued to Brown.
The judgment of the district court is affirmed.
. Financial Service Corporation of America is also a Georgia corporation, but is registered as a foreign corporation in Florida and does business there. It appears that FSCA is a licensed broker/dealer, a member of the Midwest and Boston Stock Exchanges and is engaged in the sale of mutual funds, securities and other related investments. Mr. Brown was the company’s sales manager for Florida and officed in Fort Lauderdale. He was a Florida citizen at the time this law suit was filed. It is unclear from the record whether Mr. Brown was the senior FSCA official in Florida, but it is safe to say that he had a significant hand in the company’s operations there.
. The employment contract also stated that 1000 additional shares of FSC stock would be sold to Brown when they became available. Subsequently this stock was available at a price of $7 a share. For reasons we are unable to discern either the company failed to offer this stock to Brown or he failed to purchase it.
. The full text of this letter is as follows:
FINANCIAL SERVICE CORPORATION
May 29, 1969
Mr. Albert A. Brown 4100 Galt Ocean Drive Ft. Lauderdale, Florida 33308 Dear Al:
In accordance with your previously expressed interest in purchasing shares of Financial Service Corporation, International stock, we are enclosing the following forms :
Sign and Return
(1) Stock Purchase Agreement (2 copies) 1
(2) Promissory Note (2 copies) 1
(3) Stock Powers (1) 1
(4) Affidavit (2 copies) 1
(5) Offering Circular
Do not return
All items which you are to execute must he received in our office within ten (10) days from the date of this letter. If these documents have not been returned, we will assume that you are no longer interested in purchasing the stock.
The prospectus mentions a price per share of $5.00. The value of FSCI stock is determined by its Board of Directors at regular intervals. The price per share of this offering to you was set at $5.00 on July 1, 1968.
The Stock Purchase Agreement outlines the terms and conditions of your investment in FSCI stock. Please read it carefully..
There are several methods which can be used to pay for your FSCI stock. 1. Obviously, a cash payment will be the least expensive to you. If you choose this method, please return your check with the other documents.
2. Financing through a local bank connection may be your next choice. It is probable that more attractive terms are available locally, plus the advantage of strengthening your personal banking relationship. If this method is to be used, a check should also accompany the above executed documents.
(R-721)
3. You may wish to avail yourself of the financing plan available through the Citizens and Southern Bank in Atlanta, Georgia, which is described on the last page of your Stock Purchase Agreement, Appendix A.
4. Finally, a combination of the above can be arranged.
If you select option 3 or 4, you must execute the Note and Stock Powers which are enclosed. The Note evidences your agreement to pay the balance of the purchase price not paid in cash at the time of your purchase. The security for the Note will be your FSCI stock. Therefore your stock certificates will be held as collateral until the Note is paid in full. A Stock Power is included for each certificate that will be issued.
The Affidavit evidences your understanding of the restrictions placed on the transferability of the shares you propose to purchase. This document is necessary because of State and Federal security laws.
When you have executed these documents and returned them to us as outlined above, we will issue certificates in your name and either mail them to you or deliver them to the Bank depending on the payment method you select.
Very truly yours, /s/ William H. Branch, Jr. Assistant Secretary
. This letter reads:
June 6, 1969
Mr. William Branch
Financial Secretary
Financial Service Corp. of America
Financial Service Building
148 Cain Street
Atlanta, Georgia 30303
Dear Bill:
As per your letter of May 29, 1969, I am indicating by the enclosures — stock purchase agreement and affidavit — my desire to purchase the 4,000 shares of stock indicated on the agreement. I have not returned the promissory note or stock powers because I should like very much to finance this purchase locally if I can. I have just not had the time this week to do anything along these lines — but I am certainly intent on purchasing this stock through a loan whether it be through a local banking institution or through an Atlanta bank.
I wanted also to confirm the discussion you and I had yesterday on the phone on questions that I had raised. Referring to the termination of employment clause in the stock purchase agreement, while it is stated that the company shall have one year to repurchase any shares, we agreed that the company would repurchase almost immediately after termination. We also agreed that the market value of the stock was actually determined twice each year — in June and December. I referred to this item because of the reference in that same clause No. 3 in the stock purchase agreement which refers to the meeting of the Board “at which such action was taken”.
Furthermore, we also agreed that the 15% charge referred to. in clause No. 1 of the agreement for collection by an attorney would only be in effect if the principal and interest of the note were not collectible.
We also agreed that if I were to anticipate payment of the note or of any portion of the note, I would receive a corresponding refund or reduction of interest charges.
Referring to paragraph No. 4, miscellaneous, we agreed that the reference to either party having the right to offset or cancel existing indebtedness, referred to a standard approach to the cancelling of indebtedness by offsetting it with other sources of dollars.
(R-725) The only other comment made in our discussion was that this stock purchase agreement was different from the one issued to some men in the company which called for repurchase of a portion of a man’s stock holdings if he did not earn specific or required amount of dollars during a prior twelvemonth period. This arrangement did not apply to me in that this agreement calls for the repurchase by the company at a fair market value at the time of such repurchase.
By the way, I am including two copies of the stock purchase agreement since I would like a completed one returned to me for my files.
Kindest regards, FINANCIAL SERVICE CORP. OF AMERICA ALBERT A. BROWN Senior Vice President AAB/jp Enclosures
. The purchase of the 4000 shares was financed by Brown’s note for $20,002. The stock served as collateral for this loan and immediately after its execution FSC discounted the note with an Atlanta bank. In March 1970, when FSC offered to repurchase Brown’s shares, the note had a payoff of $18,059.87.
. Although not before us on this appeal there is a related suit filed by Financial Service Corporation of America against Brown for damages allegedly sustained while Brown was in the company’s employment.
. As to the 1000 shares Brown claims that he should have been issued this stock at $7 a share and that the company was obligated to repurchase at $10 a share. See note 2, supra. He would then have realized a $3000 profit, and it is this amount which he claims as damages. Since we hold that there is no obligation to repurchase, his claim is without merit. According to the district court’s opinion FSC is willing to sell him 1000 shares at $7 a share.
. Perhaps our conclusion in this regard will be clearer if we backtrack to the question of whether there was a contract at all. Branch’s initial letter was clearly an offer to sell 4000 shares of stock to Brown. This letter included the terms of the purchase and covered such things as offering price, the number of shares, the methods by which the purchase could be financed, and other relevant considerations concerning the transaction. If Brown had signed the stock purchase agreement at this point and returned it without further action, then FSC would have had an acceptance of its offer. But Brown did not do this; instead he called Branch and discussed with him certain aspects of the purchase, including but not limited to, what would happen in the event he left FSC’s employment. Brown’s cover letter is an outward manifestation of his failure to assent unequivocally to the terms of the stock purchase agreement. As such, Brown’s action of signing the purchase agreement and attaching his cover letter was nothing more than a counter offer. FSC would have been warranted in refusing to issue the -stock to Brown until it liad his assurance that he agreed without reservation to the terms of the purchase agreement. But Branch, although realizing that Brown did not agree completely, issued the stock to him anyway. This act was legally an acceptance of the terms of Brown’s counter offer. It is clear then that the parties contract includes both the signed stock purchase agreement and the cover letter.
. As Judge Tuttle once noted:
“It is axiomatic that the first task of a court in contract interpretation is determining from the agreement itself and the ' surrounding circumstances what the intent of the parties was. If, after examining all these sources of information, it is still not possible to determine the intent of the parties, courts can rely on rules of law which purport to determine what, in certain circumstances the parties intended, when, in fact, no one really knows what was intended. . . ” Southern Bell T & T v. Florida East Coast Ry. Co., 399 F.2d 854, 856 (5th Cir., 1968).
. See note 5, supra.
. We agree with FSC’s statement in its brief that this offer, made on March 12, 1970, to repurchase was not an attempt to exercise its option but was only an effort to resolve its dispute with Brown.
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
DOWNING v. UNITED STATES.
No. 13230.
Circuit Court of Appeals, Eighth Circuit.
Oct. 4, 1946.
Gordon C. Peterson, of Columbia Heights, Minn., for appellant.
Clifford F. Hansen, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.
Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.
JOHNSEN, Circuit Judge.
Appellant was convicted by a jury on a count in an information charging him with unlawfully having obtained the removal of a tenant from a housing accommodation in the Minneapolis-St. Paul Defense Rental Area, in violation of “Rent Regulation for Housing,” ******8 Fed.Reg. 14663, under the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, §§ 901-946, by falsely stating in the notice to quit that “the landlord seeks to recover possession, in good faith, for the immediate purpose of substantially altering and remodeling the house thereon in a manner which cannot practicably be done with the tenant in occupancy.”
There was a second count in the information charging that appellant had also violated the Act by having filed a copy of the notice to quit, containing the false statement referred to, with the Minneapolis-St. Paul Defense Rental Area Office. On this count, the jury found appellant not guilty. Appellant thereupon filed a motion for a judgment of acquittal on the convicted count notwithstanding the verdict or in the alternative for a new trial, on the ground that the verdict on the separate counts was inconsistent and could not stand. The trial court denied the motions.
Reversal is sought here solhly upon the ground that the conviction on Count I was inconsistent with the acquittal on Count II, because the only question for the jury on each count, under the evidence, was whether the reason stated in the notice to quit for demanding possession was false or true, and that the verdict therefore could not stand but a new trial must be granted.
Prior to Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, 80 A.L.R. 161, there had been a conflict in the federal courts on whether an inconsistent verdict on the separate counts of an indictment could support a criminal sentence. The Dunn case settled the question, however, when the Supreme Court refused to reverse a conviction for inconsistency in verdict on the separate counts of an indictment, involving the same evidence, and said, 284 U.S. at page 393, 52 S.Ct. at page 190: “Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. * * * If separate indictments had been presented against the defendant for possession [of intoxicating liquor] and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold.”
The Supreme Court has made no departure from this rule. We have most recently repeated and applied it in Pilgreen v. United States, 8 Cir., 157 F.2d 427. The cases upon which appellant relies are all prior to the Dunn case. Inconsistency in a verdict on the separate counts of an indictment or information, then, does not entitle a defendant to a new trial.
The judgment is accordingly affirmed.
Rent Regulation for Housing:
“Sec. 6. Removal of tenant — (a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any pex’son attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto, unless:
* * * $ *
“(5) Demolition or alteration by landlord. The landlord seeks in good faith to recover possession for the immediate purpose of demolishing ihe housing accommodations or of substantially altering or remodeling it in a manner which cannot practicably be done with the tenant in occupancy and the plans for such alteration or remodeling have been approved by the proper authorities, if such approval is required by local law; * %
Sec. 6(d). “Notices prior to action to remove tenant. Every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of the tenant. A written copy of such notice shall be given to the area rent office within 24 hours after the notice is given to the tenant. * * * ”
Whether the fact that a notice contains a false statement makes the filing of a copy of it with the area rent office a crime, in view of the language of the Regulation, we do not now consider. Both parties appear to assume it does, and appellant predicates his contention here upon this assumption. We shall answer the contention as made. If the second count did not charge a criminal offense, then appellant’s contention for reversal would be wholly without any basis, because the verdict on it would be a nullity.
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_state
|
44
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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".
Harvey EARVIN, Petitioner-Appellant, v. James A. LYNAUGH, Director of the Texas Department of Corrections, Respondent-Appellee.
No. 87-6041.
United States Court of Appeals, Fifth Circuit.
Nov. 10, 1988.
Will Gray, Houston, Tex., for petitioner-appellant.
Charles A. Palmer, Robert S. Walt, Asst. Attys. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Before CLARK, Chief Judge, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
A jury convicted Harvey Earvin of capital murder on August 25, 1977, and sentenced him to death. After exhausting his appeals in the state court, he petitioned the United States District Court for the Eastern District of Texas for a writ of habeas corpus which was denied on September 3, 1987. He then appealed to this Court. On appeal, he claims that he was denied effective assistance of counsel during the punishment stage of his trial. Upon a review of the record and applicable law, we affirm the district court’s denial of the writ of habeas corpus.
I. Facts and Prior Proceedings
The body of Ertis Brock was discovered on the evening of December 7, 1976. He had been shot once in the chest with a shotgun. Within days, Earvin, along with two others, was arrested in connection with the murder. Earvin subsequently made a written confession, stating that he shot Brock while attempting to rob him.
Earvin was tried before a jury and convicted of murder on August 24, 1977. He was then sentenced to death on August 25, 1977. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals on January 10, 1979, and certiorari was denied by the United States Supreme Court on October 15, 1979. Earvin v. State, 582 S.W.2d 794 (Tex.Crim.App.1979) (en banc), cert. denied, 444 U.S. 919, 100 S.Ct. 238, 62 L.Ed.2d 175 (1979).
After learning of his execution date of May 14, 1986, Earvin filed two separate applications for writ of habeas corpus and motions for stay of execution, which were both denied by the Texas Court of Criminal Appeals.
Earvin then filed a writ pursuant to 28 U.S.C. § 2254 and a request for stay of execution in the federal district court. The stay was granted and an evidentiary hearing was held. Earvin claimed, among other things, that he was denied effective assistance of counsel throughout his trial. The district judge ruled against Earvin, finding no constitutional ground meriting relief. Earvin then appealed to this Court.
Earvin has narrowed his appeal. He now claims that his counsel was ineffective only at the penalty stage of his trial. He bases his claim on the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. He also raises for the first time the claim that the Texas procedure imposing the death penalty is unconstitutional on its face.
We affirm the district court. Earvin has not established that his counsel was ineffective nor that he was prejudiced by his counsel’s actions. Further, he is precluded from bringing up the constitutionality of the Texas statute because he has not properly preserved error.
II. Claim of Ineffective Assistance of Counsel
Earvin seeks to have his sentence set aside based on a claim of ineffective assistance of counsel at the penalty stage of his trial. He alleged three main errors on the part of his counsel: (1) his counsel failed to guide the jury in relating the mitigating evidence presented to the three special issues that the jury had to decide affirmatively for Earvin to receive the death penalty; (2) his counsel, in his closing argument, failed to disagree with the prosecutor that special issues one and three should be affirmatively answered by the jury; and (3) his counsel failed to object to either the trial court’s definition of “deliberate” in the penalty charge or the prosecution’s argument on this issue. He claims that because of these mistakes his counsel was ineffective.
A. Standard to be Applied
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court enunciated the standard to be applied when reviewing a claim of ineffective assistance of counsel. There the Court held:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 686, 104 S.Ct. at 2064.
B. Deficiency of Counsel
To prove counsel was deficient, the defendant must prove that counsel’s representation fell below an objective prevailing professional standard of reasonableness. Id. at 690, 104 S.Ct. at 2065. This assessment is determined by looking to the situation as seen by counsel at the time of the trial. Because of the difficulties of this inquiry, the Supreme Court directs us to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (citations omitted); see also Knighton v. Maggio, 740 F.2d 1344, 1350 (5th Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984).
This record discloses that the challenged action of Earvin’s counsel can be reasonably part of a sound trial strategy. Thus, Earvin’s claim must fail. Earvin’s counsel’s strategy was to admit to the murder and focus instead on gaining the sympathy of the jury to grant Earvin a life sentence instead of the death penalty. Counsel attempted to carry out his strategy through the use of mitigating evidence. At the punishment phase of the trial, Earvin’s attorney presented the following witnesses: Earvin, Earvin’s mother, his stepfather, a preacher, one of the jailers in charge of Earvin, and two county prisoners who shared Earvin’s cell. Through the use of the witnesses’ testimony, the attorney attempted to develop the following mitigating factors: the youth of Earvin, his lack of a criminal record, his fear at the time of the murder, and his lack of specific intent to murder.
Earvin first argues that the jury did not properly consider this mitigating evidence because of lack of guidance by his counsel. The Supreme Court has contemplated that a jury will be “given guidance regarding the factors about the crime and the defendant that the state, representing society, deems particularly relevant to the sentencing decision____” Gregg v. Georgia, 428 U.S. 153, 191, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976). The Court, however, has held that the Texas statute’s use of the three special issues gives enough guidance to the jury in their application of mitigating factors. Franklin v. Lynaugh, — U.S. -, -, 108 S.Ct. 2320, 2332, 101 L.Ed.2d 155 (1988) (plurality opinion); Jurek v. Texas, 428 U.S. 262, 275, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976). It follows then that since Earvin concedes that his attorney, combined with the prosecution’s presentation of witnesses, brought out all the relevant mitigating evidence, the jury was properly guided through the three special issues to use all the relevant evidence in reaching its decision.
Earvin next claims his counsel unreasonably ignored to the point of effective waiver special issues one and three. His attorney made the conscious strategy decision, however, to focus on special issue two. This was a reasonable professional choice under the circumstances. It was the issue with the best chance for success, and only one negatively answered issue is needed for the defendant’s life to be spared.
As to issue one, the issue on the deliberateness of the defendant’s actions, the jurors heard overwhelming evidence of deliberate conduct, including Earvin’s own testimony at the punishment phase. Earvin testified that the robbery had been planned for at least two days, that he had gone to the scene armed and disguised, and that he had fired the fatal shot. There was clearly enough evidence for the jury to conclude that when Earvin deliberately shot Brock, he could reasonably expect that Brock’s death would result. See, e.g., Granviel v. State, 552 S.W.2d 107, 122-28 (Tex.Crim. App.1977), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977). It was not unreasonable then for counsel in effect to concede this issue.
As to issue three, the issue on provocation, there was also strong evidence in the record that it was reasonable for counsel to discount the issue. The facts were disputed. Earvin claims he only shot his gun after the decedent reached into his pocket. The prosecution put on evidence that no gun was found on Brock. The jury was free to disbelieve Earvin’s statement that his victim had a gun that he would have used on Earvin if Earvin had not used his gun first.
The law on this issue is strongly against Earvin since a robber has no right to self defense. Smith v. State, 676 S.W.2d 379 (Tex.Crim.App.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 490 (the jury was held to have acted within its proper role in making an affirmative finding on issue three even though the decedent had a gun and used it). Thus, both the law and the facts pointed to answering this issue affirmatively.
As to issue two, the future dangerousness of the defendant, Earvin’s counsel undertook to establish that Earvin no longer posed a threat to society. Counsel’s strategy was reasonable. In Jurek, the Supreme Court approved of the trial counsel’s use of the following mitigating evidence in an attempt to receive a negative answer from the jury on issue two:
“In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look at the age of the defendant and whether or not at the time of commission of the offense he was acting under duress or under the domination of another____ 552 S.W.2d, at 93-94.”
428 U.S. at 275, 96 S.Ct. at 2957. Earvin’s counsel thus had direct support from the Supreme Court when he chose to focus on special issue number two in attempting to get Earvin a life sentence. The mitigating evidence presented was properly considered under issue two, including Earvin’s lack of a prior criminal record, his age, and his alleged fear at the time of the murder. The jury however had enough evidence before it when it determined issue two negatively.
Finally, Earvin argues that counsel’s failure to object to the punishment charge was improper. He claims that the definition of “deliberate” in the charge coupled with the court’s definition of “intent” and the prosecution’s misstatement of the law made intentional and deliberate conduct synonymous. Since his counsel failed to object then, Earvin argues he failed to achieve the constitutional level of competence.
It is clear that something more than intentional conduct must be found at the punishment phase of the trial on the issue of “deliberateness.” See, e.g., Marquez v. State, 725 S.W.2d 217, 244 (Tex.Crim.App.1987); Fearance v. State, 620 S.W.2d 577, 584 (Tex.Crim.App.1981). The definitions of “deliberate” and “intent” used by the trial court, however, were defined differently and in a way not at odds with definitions provided by the Court of Criminal Appeals. See Thompson v. State, 691 S.W.2d 627, 632-33 (Tex.Crim.App.), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1984).
As to counsel’s failure to object to the prosecution’s alleged improper argument, Earvin had to show “either persistent and pronounced misconduct or that the evidence was so insubstantial that but for the remarks, no conviction would have occurred.” Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir.1982), rev’d on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983); see also Willie v. Maggio, 737 F.2d 1372, 1390 (5th Cir.), cert. denied, 469 U.S. 1002, 105 S.Ct. 415, 83 L.Ed.2d 342 (1984). As we found earlier, the jury clearly had enough evidence to find deliberateness on the part of Earvin so the prosecution’s remarks were not prejudicial.
C. Prejudice to Earvin
Even if Earvin had satisfied the first prong of the Strickland test, he still must fail on appeal since he fails affirmatively to prove prejudice from the alleged errors. Both prongs must be satisfied in order to be entitled to relief; thus, since Earvin fails on the first point, there is no need to consider the second prong of the Strickland test. See Willie, 737 F.2d at 1392 (proof of one without the other is not enough).
We simply make this brief observation: As to the alleged errors of his counsel, Earvin falls far short of showing that the outcome would have been different even if error by his counsel occurred. He has not shown that if his counsel had objected to the charge and the prosecutor’s arguments on the charge or if he had argued differently on the special issues or if he had tied the evidence more closely to the special issues that the outcome would have been different. Finally, Earvin failed to demonstrate a fundamental unfairness to the proceeding, the underlying theme of the two-prong Strickland approach. 466 U.S. at 697, 104 S.Ct. at 2069.
III. Constitutionality of the Texas Statute
Earvin raises for the first time in his series of petitions and appeals that the Texas statute on its face is unconstitutional, relying on this Court’s opinion in Penny v. Lynaugh, 832 F.2d 915 (5th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988). Earvin argues that the statute does not allow the jury to consider all the mitigating evidence because of the use of the special issues. This claim is not properly before this Court and thus should not be considered for the first time on appeal. Hall v. Maggio, 697 F.2d 641, 642-43 (5th Cir.1983).
Even if the claim were properly before us, the Supreme Court has continued favorably to view the use of the “special issues” by the Texas courts. Franklin, 108 S.Ct. at 2331-32. The words of Justice O’Con-nor’s concurrence in Franklin are apt for Earvin’s case today:
[O]n the facts of this case, the Texas capital sentencing procedure did not prevent the sentencing jury from giving mitigating effect to any evidence relevant to petitioner’s character or background or to the circumstances of the offense.
IV. Conclusion
We affirm the district court’s decision denying Earvin habeas corpus relief. Ear-vin failed to prove his counsel was so deficient that he was denied effective assistance of counsel at the penalty stage of his trial. Further, he failed to prove any prejudice from the actions of his counsel justifying relief from this Court.
AFFIRMED.
.To receive the death sentence in Texas, the jury must answer three special issues affirmatively:
1. Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
2. Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
3. If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
Tex.Code Crim.Proc. art. 37.071(b).
. The prosecution put on several witnesses that testified to a lack of remorse after the crime by Earvin, another factor the Supreme Court found appropriately considered under special issue two in Jurek. There was also evidence that Earvin continued to be a trouble-maker while in pre-trial custody. For example, there was evidence that he set fire to another prisoner’s leg as a prank with other prisoners and then later laughed about it, that he was the boss of his cell block, and that he laughed when told he would receive the death sentence.
Also, the prosecution successfully cross-examined the defense witnesses. Earvin’s counsel attempted to use Earvin’s mother as a witness, but she was unable to complete her testimony because of emotional distress. Also, he used a preacher, but cross-examination effectively brought out that the preacher did not know Earvin well. Finally, Earvin's supervisor testified that he liked Earvin, but on cross-examination, was unable to state that Earvin was no longer dangerous to society.
. In paragraph two of the charge, the trial court gave the following instruction:
By the term "deliberate”, as used in the special issue, is meant with careful consideration or deliberation; with full intent; not hastily or carelessly — as a deliberately formed purpose; with awareness of the consequences.” "A person acts with intent with respect to the nature of his conduct, or to the result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result."
Earlier at the guilt stage of the trial, the trial court had given the jury the following definition of “intentionally” and "intent”:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
The prosecutor in his final penalty argument said:
I think in deliberating yesterday ... as to whether or not this was murder or capital murder, I think by finding it was capital mur-der____ This [first] issue was obviously answered. I think it was answered whenever you looked over intentional as to his conduct.”
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:
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songer_fedvst
|
B
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)?" 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".
UNARCO INDUSTRIES, INC., an Illinois corporation and Overhead Door Corporation, an Indiana corporation, Plaintiffs-Appellees, v. KELLEY COMPANY, Inc., a Wisconsin corporation, Defendant-Appellant.
No. 71-1522.
United States Court of Appeals, Seventh Circuit.
Argued June 7, 1972.
Decided Sept. 7, 1972.
Norman C. Skogstad, Grafton, Wis., David L. Petersen, Elwin J. Zarwell, and John S. Sammond, Milwaukee, Wis., for defendant-appellant.
Stanley J. Adelman and Frederic S. Lane, Chicago, Ill., for plaintiffs-appellees.
Before DUFFY, Senior Circuit Judge, DURFEE , Senior Associate Judge and ESCHBACH , District Judge.
Senior Associate Judge James R. Durfee of the United States Court of Claims is sitting by designation.
District Judge Jesse E. Esebbaeh of the Northern District of Indiana is sitting by designation.
DUFFY, Senior Circuit Judge.
This is a suit for declaratory relief seeking the proper construction of a written agreement. The critical question is whether or not the patent license herein considered was assignable without the consent of the licensor. The District Court held the agreement to be assignable. A motion to restrain production and sale of the patented product pending a decision by the District Court was held in abeyance and finally denied.
The principal product manufactured by Kelley Company, Inc., the defendant herein, is based upon a patent granted to Garrett P. Kelley. The Company produced material-handling equipment known as “dockboard.” This product permits the movement of merchandise from the bed of a truck to a loading dock.
In 1964, Kelley became aware that Unarco, a large corporation, was marketing and selling a dockboard which Kelley believed infringed its patented invention.
Kelley Company sued Unarco in the Federal District Court in Tennessee for patent infringement. This litigation became protracted and thus very expensive. Settlement discussions were held, and it became apparent to all that it would be for the best interest of both parties to enter into a nonexclusive license agreement terminating the litigation.
It became apparent that Unarco was not a serious competitor in the dock-board industry. Unarco’s principal interest was to use dockboard as a selling tool for its principal product which was shelving. The settlement permitted Un-arco to manufacture annually a few hundred dockboards without paying a royalty. While operating under this agreement, Unarco never exceeded the minimum number of royalty-free dockboards anticipated by the parties to the agreement.
Thereafter, the President of a Texas conglomerate named Overhead Door attempted to buy or merge with Kelley Company because of its desire to operate in the dockboard field. No agreement was reached.
Overhead Door then contacted Unarco with respect to the possible purchase of Unarco’s dockboard division [Sturdi-bilt]. On August 4, 1969, Overhead Door and Unarco entered into a contract whereby Overhead Door agreed to purchase and Unarco agreed to sell Unarco’s dockboard business and all the assets used in connection therewith. In this contract, Unarco agreed not to compete for at least five years in the dockboard business with Overhead Door, and furthermore warranted that “Every contract, license agreement or other intangible included among Dock Board Assets is assignable by UNARCO without prior consent of any other person. . . . ”
Subsequently, in a letter dated August 13, 1969, the attorney for Kelley was notified by a newspaper article of the contemplated acquisition of the Sturdi-bilt (dockboard) division of Unarco by Overhead Door. Overhead Door was advised by Kelley’s attorney that their license agreement for the patents “was and is limited to Unarco.”
On October 20, 1969, Unarco and Overhead Door commenced this action in District Court for a declaratory judgment with respect to the assignability of the nonexclusive patent license.
The District Court held that the compromise agreement was a simple contract to be construed under the common law of the State of Illinois. Further, that as Illinois common law views a liberal construction of the assignability of all contracts, the license of the patent was assignable.
Defendant Kelley points out that the nonexclusive license agreement or contract between Kelley and Unarco was not only the result of a compromise settlement but it was, in fact, a forbearance.
Kelley points out that if the judgment of the District Court is sustained, Kelley’s refusal to sell out to Overhead Door will be circumvented, and Overhead Door would, indirectly, obtain Kelley’s patent rights which Kelley had consistently refused to sell to Overhead Door.
The threshold question before our Court is whether the law of the State of Illinois, where the contested agreement was consummated, applies, or whether determination of this issue in federal court falls within one of the exceptions to the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) requiring the application of federal common law.
The Supreme Court considered this exception to Erie in Sola Electric Co. v. Jefferson Co., 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165 (1942). In that opinion regarding patent license litigation, the Supreme Court also considered the application of estoppel and whether estoppel in litigation concerning patent licenses and the Sherman Act was a state or federal question. The Court held that estoppel as applied was a federal question where, if invoked, it would thwart the purposes of statutes of the United States. The Erie doctrine was circumvented by the Court in Sola Electric Co., supra, by the following passage:
“It is familiar [doctrine] that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. In such a case our decision is not controlled by Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.] There we followed state law because it was the law to be applied in the federal courts. But the doctrine of that case is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. Royal Indemnity Co. v. United States, 313 U.S. 289, 296 [61 S.Ct. 995, 997, 85 L.Ed. 1361;] Prudence [Realization] Corp. v. Geist, 316 U.S. 89, 95 [62 S.Ct. 978, 982, 86 L.Ed. 1293;] Board of Comm’rs. [of Jackson County] v. United States, 308 U.S. 343, 349 [350, 60 S.Ct. 285, 287, 288, 84 L.Ed. 313;] cf. O’Brien v. Western Union Telegraph Co. [1 Cir.,] 113 F.2d 539, 541. * * * To the federal statute and policy, conflicting state law and policy must yield.”
Article I, Section 8, Clause 8 of the United States Constitution provides that Congress has been granted the power “ . . . [T]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This exclusive and personal concept of patents was considered by Congress upon implementation of the Patent Act of 1952 and other legislation aimed at federal control of patent regulation. When an inventor or person holding patent rights desires to license or relinquish any part of the patent monopoly, such person is utilizing the monopoly of rights intended by the framers of the Constitution and the legislation of Congress to reward invention and originality. This monopoly conferred by federal statute as well as the policy perpetuating this monopoly, so affects the licensing of patents, and the policy behind such licensing is so intertwined with the sweep of federal statutes, that any question with respect thereto must be governed by federal law.
We are of the opinion that the question of assignability of a patent license is a specific policy of federal patent law dealing with federal patent law. Therefore, we hold federal law applies to the question of the assignability of the patent license in question.
We agree with Kelley that we are here considering a specific policy of the patent law dealing with federal patent rights, and in that respect our problem does not involve the general state of Illinois contract law.
The long standing federal rule of law with respect to the assignability of patent license agreements provides that these agreements are personal to the licensee and not assignable unless expressly made so in the agreement. Troy Iron & Nail Factory v. Corning, 55 (14 How.) U.S. 193, 14 L.Ed. 383 (1852); Hapgood v. Hewitt, 119 U.S. 226, 7 S.Ct. 193, 30 L.Ed. 380 (1886); Lane & Bodley Co. v. Locke, 150 U.S. 193, 14 S.Ct. 78, 37 L.Ed. 1049 (1893); Wood Harvester Co. v. Minneapolis Harvester Co., 61 F. 256 (8 Cir., 1894); Bowers v. Lake Superior Contracting, 149 F. 983 (8 Cir., 1906). See also Deller’s Walker on Patents, Sec. 409 (2d Ed. 1965).
In Wood Harvester Co. v. Minneapolis Harvester Co., supra, the license agreement said nothing pertaining to assignability. That Court said 61 F. on page 258: “ . . . I think the absence of any words of assignability in this license shows an intent to make it run to [licensees] alone, as clearly as if words of nonassignability had been incorporated therein.” In post-Erie federal decisions, this rule of non-assignability has been unquestioned. Rock-Ola Mfg. Corp. v. Filben Mfg. Co., 168 F.2d 919 (8 Cir., 1948), cert. den. 335 U.S. 892, 69 S.Ct. 249, 93 L.Ed. 430.
This rule of non-assignability absent consent has been adhered to by state and federal courts. We therefore hold the District Court was in error in departing from this well established rule.
We hold the nonexclusive license agreement which was, in fact, a forbearance of suit, here in question was personal, and that it was not assignable without Kelley’s consent. Further, the attempted assignment by Unarco Industries, Inc. to Overhead Door was and is void.
The judgment of the District Court is
Reversed.
. The license agreement pursuant to the settlement between Kelley and Unarco was executed on January 1, 1968. The license provided that Kelley grant Unarco for the entire term of specified patents “a nonexclusive license to make, have made, use and sell dockboards coming within the scope of any claims of any of the said patents.” The license further provided for royalties on dockboards produced by Unarco over a stipulated minimum. Also, as part of the agreement, Unarco issued a nonexclusive license agreement to Kelley for two Unarco patents under which agreement Kelley was to pay a royalty.
. Appellant Kelley stated in its brief to this Court “This overture and approach by the Texas conglomerate was politely rebuffed.”
. On October 23, 1969, three days after commencing this action, Unarco entered into an assignment of licensing agreement with Overhead Door, assigning to Overhead all their rights to royalties from Kelley under that agreement for the use of Unareo’s patents.
. The exception to application of state law to outcome determinative questions appears on page 78 of 304 U.S., on page 822 of 58 S.Ct. of Erie, supra “Except in matters [governed] by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state.”
. 35 U.S.C. § 1 et seq.
. Although we need not consider state law, Illinois law is also well settled. The case of Havana Press Drill Company v. Ashurst, 148 Ill. 115, 35 N.E. 873 (1893) was not called to the attention of the District Court. In that case, a license was granted which was thereafter assigned. There was no statement in the license as to its assignability. The Illinois Supreme Court there stated: “In the present case the Drill Company had no authority to assign the license for two reasons, (1) Because the license to it did not run to its assigns, and was, therefore, merely personal. . . . ” See also Smith v. Preston, 170 Ill. 179, 48 N.E. 688 (1897); Rhodes v. Ashurst, 176 Ill. 351, 52 N.E. 118 (1898).
Question: Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_3-3-2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "First Amendment - speech and other expression".
Alfredo ESTEBAN and Steve Craig Roberds, Appellants, v. CENTRAL MISSOURI STATE COLLEGE, Warren C. Lovinger; W. Lester Simpson; Joe Herndon; Leland J. Culp; Virginia Cottlieb; Byron Constance and J. N. Cunningham, Appellees.
No. 19565.
United States Court of Appeals Eighth Circuit.
Aug. 28, 1969.
Rehearing Denied Oct. 3, 1969.
Irving Achtenberg, Kansas City, Mo., for appellants.
Robert L. Wesner, Sedalia, Mo., for appellees.
Brief of Amicus Curiae (The Curators of the University of Missouri) was filed by Jackson A. Wright, T. Richard Mager and Marvin E. Wright, Columbia, Mo.
Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.
BLACKMUN, Circuit Judge.
Alfredo Esteban and Steve Craig Roberds, students at Central Missouri State College, a tax-supported institution at Warrensburg, Missouri, were suspended on March 31, 1967, for two semesters but with the right thereafter to apply for readmission. The two, by their next friends, instituted the present action for declaratory and injunctive relief. The named defendants are the College, its President, and its Board of Regents. The plaintiffs allege, primarily, first, fifth, and fourteenth amendment violations. Judge Hunter, with a detailed memorandum, denied them relief and dismissed their complaint. Esteban v. Central Missouri State College, 290 F.Supp. 622 (W.D.Mo.1968). The plaintiffs appeal.
Jurisdiction is asserted under 28 U.S.C. § 1331 and § 1343 and 42 U.S.C. § 1981 and § 1983. We are satisfied as to federal jurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.
We note initially that, although the two semester suspension period has long since expired, neither plaintiff, up to the time of the oral argument on May 16, 1969, has taken the trouble to apply for readmission.
The disciplinary action against the plaintiffs arose out of events which took place on or adjacent to the college campus on the nights of March 29 and 30, 1967. At that time Esteban was on scholastic probation and Roberds was on disciplinary probation. Esteban also had been on disciplinary probation over a knifing incident with a fellow student, but his disciplinary probation had expired a short time before.
Both sides in their appellate briefs specifically adopt findings of fact made by Judge Hunter with respect to these March 1967 events. Accordingly, we set forth certain of those findings here:
“* -x- * These demonstrations took place at the intersection of the public street adjacent to the school campus and State Highway 13 and overflowed onto the sidewalks and campus. On the evening of March 29, some 350 students were present in the mass and on March 30, there were some 600 students included. As a partial result of these two mass demonstrations there was in excess of $600 damages and destruction of college property, including broken school building windows and destroyed shrubbery ; eggs were thrown; the Dean of Men, Dr. Chalquist, was hanged in effigy, his ‘dummy’ torn up and set on fire; traffic was halted and blocked, cars were rocked, and their occupants ordered out into the street. The college president directed a number of his personnel, including Dr. Meverden, to go to the scene to restore order.
“ESTEBAN EVENT:
“* * * evening of March 29, 1967, around 11:30 p. m., he left his dormitory about the time the ‘disturbance’ had subsided. Some of the students were proceeding along the street from the mass demonstration to their dormitories. Esteban proceeded down the sidewalk to within about 100 feet of the intersection of the scene of the mass demonstration and stayed there awhile. Dr. Meverden, a faculty member, who was seeking to disperse students standing outside their dorms, approached Esteban and asked him to go inside the dormitory. Instead of complying, Esteban asked why, and on again being requested to go in, again asked why. He told Dr. Meverden that he was not in violation of any state, county, or federal law and that he had a right to be out there. Dr. Meverden asked for his student identification card which by college regulation he was required to have in his possession at all times. Esteban said (‘in rough words’ according to one witness) he did not have it. Nor did he give his name. Dr. Meverden again requested him to go in the dormitory and get off the street. Esteban argued with Dr. Meverden and questioned his authority, saying there were no rules limiting the time men could stay outside the dorms. Shortly, and with the encouragement of other students present, he went into the dormitory. Dr. Meverden also went in and asked Gerald Haddock, the resident assistant of Esteban’s dormitory, who Esteban was. Haddock was overheard by Esteban telling Dr. Meverden Esteban’s name. Esteban, as Dr. Meverden was leaving, called Haddock a prick and a bastard and told him he ‘would not be around very long.’ According to Esteban’s roommate, Esteban then angrily picked up a waste can and emptied the contents on the floor at the feet of Haddock.
“ROBERDS EVENT:
* * * * * *
“Throughout both evenings of the mass demonstrations Roberds was present as a part of the crowd. On March 29, 1967, he arrived at the scene of the demonstration about 10:15 p. m. and returned to his dormitory about 10:45 p. m. On March 30, 1967, he arrived at the scene about 9:30 p. m. and remained until about 10:30 p. m. During the first night, while a part of the gathered crowd, he talked to students who were present in it. Roberds testified that the second evening, also while a part of the crowd at the demonstration, that T discussed some of the things that were going on, the rocking of the cars and the dummy. At that time I mentioned my disgust with the college, and we talked, as the people I had talked to had the same feeling.’ He saw the dummy brought to the scene of the demonstration; saw it hung, torn up and burned by students in the crowd. He saw the cars approached by the students, saw the cars rocked, saw the attempts to take the occupants out of the cars. He returned to his dormitory after the dispersal of the gathering. He stated he was at the demonstrations each evening simply as a ‘spectator’, not par-tieipating in any of the acts of violence or destruction.” [Footnote omitted]
Both sides also adopt Judge Hunter’s findings as to Roberds’ situation prior to the March events:
“Prior to the mass demonstrations, Roberds had been placed on disciplinary probation and furnished a written statement of the terms of that probation. Dean Chalquist also orally explained those terms to him. He and Dean Chalquist conversed relative to his intention to participate in a demonstration. Roberds asked about the possible repercussions of his involvement in (future) demonstrations or disturbances. He was advised ‘that any action on your part which may reflect unfavorably upon either you or the institution can be considered grounds for suspension.’ Roberds, under date of February 5, 1967, wrote E. J. Cantrell, a Representative from his county in the Missouri Legislature, the following letter:
‘ * * * I assure you, I do not stand alone in my disgust with this institution. From suppression of speech and expression to ridiculous, trivial regulations this college has done more to discourage democratic belief than any of the world’s tyrants. * * * My comrades and I plan on turning this school into a Berkeley if something isn’t done.’ ”
[Footnotes omitted]
The procedural history of the case. These plaintiffs, after their suspensions, had filed earlier complaints (277 F.Supp. 649) in the Western District of Missouri against the same defendants. Those suits also had come before Judge Hunter. The court concluded that procedural due process had not been afforded the students and that “the critical defect in the hearing procedure used by the college was the fact that the person to whom the students were permitted to make their explanation or showing, Dr. Chal-quist, was only one of a number of persons on the board which made the recommendation of suspension.” Accordingly, the court directed the defendants to grant each of the plaintiffs a new hearing on such charges as the defendants desired to press. The court prescribed the procedure to be followed. This included a written statement of the charge to be furnished the student on at least 10 days’ notice; a hearing before the college’s president, as the one person possessing authority to expel or suspend; advance inspection by the student of any affidavits or exhibits which the College intended to submit at the hearing; the student’s right to have counsel present with him at the hearing; the right to present his version as to the charge and to make such showing by way of affidavits, exhibits, and witnesses as he desired; the right to hear the evidence against him and to question any witness giving adverse evidence; the president’s determination of the facts solely on the evidence presented at the hearing and a statement by him in writing of his findings as to guilt or innocence of the conduct charged and the disposition, if any, to be made by way of disciplinary action; and permission to each side at its own expense to make a record of the events at the hearing. However, the students’ request to be reinstated subject to the outcome of the hearing was denied. Esteban v. Central Missouri State College, 277 F.Supp. 649 (W.D.Mo.1967).
Thereafter, and in line with the court’s directions, written charges and notice of hearing were served on Esteban and Roberds. The charge against Esteban read:
“You are hereby notified that you are charged with contributing to and participating in an unruly and unlawful mass gathering occurring on the 30th day of March, 1967, at and near Central Missouri State College in that you, the said, Alfredo Esteban, did resist efforts of one Dr. M. L. Meverden in dispersing said mass gathering, failed and refused to identify yourself to Dr. Meverden as requested and used vile and obscene language towards and threatened a resident assistant of the College at Foster-Knox Hall.”
That against Roberds read:
“You are hereby notified that you are charged with contributing to and participating in an unruly and unlawful mass gathering occurring on or about the 29th and 30th days of March, 1967 at and near Central Missouri State College in that you, the said Stephen Craig Roberds, on the 5th day of February, 1967 directed correspondence to Mr. E. J. Cantrell of the Missouri Legislature evidencing your intention to participate in such mass gathering, did thereafter advise Dean Hollis Chalquist, Dean of Men, of your intention to participate in such demonstration at which time you were specifically advised that such participation would result in immediate suspension from Central Missouri State College and that you did' thereafter continue to contribute to and participate in said mass gathering all of which actions were in violation of the terms and provisions of your disciplinary probation.”
The college regulations in effect- at the time, and to the extent pertinent, provided :
“The conduct of the individual student is an important indication of character and future usefulness in life. It is therefore important that each student maintain the highest standards of integrity, honesty and morality. All students are expected to conform to ordinary and accepted' social • customs and to conduct themselves at all times and in all places in a manner befitting a student of Central Missouri State College.
“All students that enroll at C.M.S.C. assume an obligation to abide by the rules and regulations of the college as well as all local, state and federal laws.
“When a breach of regulations involves a mixed group, ALL MEMBERS ARE HELD EQUALLY RESPONSIBLE.
“Conduct unbefitting a student which reflects adversely upon himself or the institution will result in disciplinary action.”
“Mass Gatherings — Participation in mass gatherings which might be considered as unruly or unlawful will subject a student to possible immediate dismissal from the College. Only a few students intentionally get involved in mob misconduct, but many so-called ‘spectators’ get drawn into a fracas and by their very presence contribute to the dimensions of the problems. It should be understood that the College considers no student to be immune from due process of law enforcement when he is in violation as an individual or as a member of a crowd.”
The hearing required by Judge Hunter’s determination as to procedural due process took place on November 3, 1967. The president made findings generally along the lines of those made by Judge Hunter and which now have been adopted by the parties to this appeal, and reaffirmed the previous suspensions. As to Esteban:
“I am of the further opinion that this student’s resistance to Dr. Mev-erden’s efforts directed towards dispersing the demonstration contributed to the unruly and disorderly situation resulting from the demonstration and unquestionably constituted participation in the mass gatherings even though at the specific time of the occurrence the gathering was in the process of being dispersed.”
As to Roberds:
“ * * * Mr. Roberds has repeatedly admitted attending the demonstrations on both nights but qualifies his attendance as being that of a spectator and the evidence does not show otherwise. It is apparently the former student’s position that his presence at the disturbances as a spectator does not constitute a violation of the College regulations relative to mass gatherings. I am of the opinion that it does. At the outset it should be made clear that the very purpose of the regulation is to prevent an unauthorized mass gathering of students which gatherings are by their very nature made up of a great number of spectators. It is the spectators that create the mass which in turn leads, as in this case, to incidents of unruly and violent action. If there were no so called spectators there would be no mass gathering.
“Furthermore, the regulation in this instance makes it clear that spectators will be considered to be contributing to the mass gathering and will be subject to similar disciplinary action.”
When the suspensions were thus affirmed, the present action was instituted by the plaintiffs.
We accept the statement, made by plaintiffs’ counsel at oral argument, that the record is devoid of anything which indicates a connection between the two plaintiffs. Actually, so far as the record discloses, they may not even have known each other. We therefore treat their situations as separate and distinct.
The plaintiffs’ argument appears to be (1) that the trial court’s findings of fact are clearly erroneous; (2) that the college’s regulation and action violated rights of freedom of speech and of peaceful assembly and to petition; and (3) that the regulation is so vague as to deny substantive due process.
1. The findings and the supportive evidence. Both sides, of course, acknowledge that the governing standard as to clear error, under Rule 52(a), Fed.R.Civ.P., is the usual one whether, on the entire evidence, one is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 1200, 4 L.Ed.2d 1218 (1960); O’Rieley v. Endicott-Johnson Corp., 297 F.2d 1, 6 (8 Cir. 1961). The Supreme Court, in Duberstein, emphasized that this rule “itself applies also to factual inferences from undisputed basic facts.”
With this standard in mind we are drawn inevitably to the conclusion that Judge Hunter’s findings were not clearlyl erroneous. *
a. Esteban. This plaintiff, by the adoption of the trial court’s findings of fact, now concedes that he left his dormitory as other students were proceeding along the street from the mass demonstration; that he proceeded toward the scene of the demonstration and within 100 feet thereof and “stayed there awhile”; that he was requested by Doctor Meverden, a member of the college staff, to go into his dormitory; that Doctor Meverden was seeking to disperse the students; that he, Esteban, did not comply with these directions but asked more than once why he was being told to go in; that he insisted on his right to be out there; that in response to Meverden’s request to produce his identification card he used rough language in his negative reply and refused to give his name; that he questioned Meverden’s authority; that only with the encouragement of other students did he go in the dormitory; that Meverden then asked the dormitory resident who Esteban was; and that, when this information was given, Esteban responded with gutter language and with a threat and dumped a waste can’s contents at the resident’s feet.
Esteban’s argument is that conduct not included within the charge is not relevant; that-the charge of participation in an unlawful mass gathering was supported only by the specification of resisting Meverden’s efforts to disperse and not at all by his refusal to identify himself or by the language he used toward the resident; that the evidence shows that Esteban was not involved in the demonstration or at its scene; that he was studying while it took place; that he was standing a half block away peacefully talking with other students when “accosted” by Meverden; and that there was no college rule which gave Meverden the authority to order him into the dormitory.
We are not at all convinced by this attempted dissection of the aggregate • facts. Moments before Esteban’s purposeful entrance on the scene an unruly mass gathering had been in control at the intersection. The mob extended to the college premises. Destruction of college property had taken place. Innocent and unsuspecting members of the public had been stopped in their automobiles, had had their cars rocked, and had been ordered out by the mob. It was an explosive situation participated in by college students and affecting college property. Meverden was dispatched there in his capacity as a staff member and at the order of the college president in an attempt to restore order and thus to protect the students from further serious trouble. His assignment, obviously, was not the most enviable one. Just as obviously, the dispersal of the students and their return to the dormitories were effective remedies for a situation which had already erupted and which remained eruptive. Meverden’s inquiry of Esteban was made with authority and with reason. He was met with the very attributes of the mob: I defiance, challenge to his authority to ask people to move on, a refusal to reveal one’s name, the language of a bully, and insults. This, it will be remembered, although perhaps not at that moment known to Meverden, was a student then on scholastic probation and only shortly before on disciplinary probation because of a knifing incident. We fail to see, understand, or comprehend Esteban’s argument that there was no substantial evidence of misconduct encompassed within the charge against him. His actions, obviously, were in resistance to Meverden’s reasonable efforts to disperse the students and to prevent the recurrence or continuance of mob ac-Ition. In our view, Esteban by his resistance was a participant in the affair leven though he may not have been one ‘of those who actually interfered with |the travel rights of others and who | destroyed college property.
b. Roberds. This plaintiff’s case differs factually from Esteban’s. But, by the adopted findings, Roberds concedes that he had asked the dean about the result which would flow from his involvement in future demonstrations or disturbances; that he was informed, in response to that inquiry on his part, that any action which would reflect unfavorably upon him or the College, could be considered grounds for suspension; that he was “present as a part of the crowd” on both evenings; that he was so present for a half hour on the first night and for an hour on the second night; that he discussed with others some of the things which were going on and expressed his “disgust with the college”; that he returned to his dormitory only after the gathering was dispersed; and that he wrote the letter to the legislator.
Roberds’ argument follows Esteban’s to the point where it says that two of the three specifications of a charge failed to support that charge. Roberds then urges that his letter to the legislator is a first amendment petition “for a redress of grievances”; that it does not at all support a finding of intent to participate in any unruly demonstration; that, anyway, intent alone is not participation; that he did not tell the dean he intended to participate; that he was not a ringleader and did not participate; that, instead, he was a mere spectator, standing and sitting “on the sidewalk, watching the events”; that observing is not participating; and that observation is not enough.
We observe in this connection that we do not read Roberds’ letter to his legislator as a mere petition for redress of grievances which he would have every right to compose and present. The letter specifies no grievance which we can ascertain. It speaks only of disgust and, as we have noted, it contains a flat threat. His right to write is not an issue. His intent and his participation are in issue.
Mere presence, under certain circumstances, has been held insufficiently representative of criminal involvement. See Barr v. City of Columbia, 378 U.S. 146, 150, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964) ; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965) ; Bozza v. United States, 330 U.S. 160, 162-164, 67 S.Ct. 645, 91 L.Ed. 818; (1947); Rollins v. Shannon, 292 F.Supp. 580, 590 (E.D.Mo.1968). Assuming, without deciding, that such criminal cases would afford precedent for a civil situation of the kind which confronts us, we note that the test as to the propriety of the inference to be drawn from presence is that of rational connection between the facts proved and the ultimate fact presumed. United States v. Romano, supra, 382 U.S. at 139, 86 S.Ct. 279; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). That rational connection, we hold, is definitely present here.
Here, again, we are not persuaded as to Roberds’ peaceful spectator status or that the court’s findings as to him have no substantial support in the record. Roberds was present at, and as a part of, the milling mass on both nights. He was there as “a part of the gathered crowd.” He, too, may not have stopped any automobile or rocked it or forced out its occupants or damaged property, but these incidents took place and were caused by the mob and he was a part of that mob. Mob action or, for that matter, the old style lynching action, always presents to the self-proclaimed “spectator” the opportunity to claim that he was merely watching, that he did not participate, and that someone else did the job. But one may participate by being present and “talking it up” as Roberds concededly did. And when this is buttressed by the intent evidenced from his letter’s expressions of disgust and tyranny and his “plan on turning this school into a Berkeley if * * * ”, we have, in our view, substantial and certainly adequate support for the inferences the trial court drew and for its findings.
2. The First Amendment rights. Having resolved the issue as to the sufficiency of the evidence against the plaintiffs, we then encounter the constitutional argument. Were their rights of free speech and of free assembly and to petition denied to them?
Obviously, one does not lose his first amendment rights by matriculation at a college. Those rights follow one through the classroom door and, as we have had occasion recently to observe, even, to a great extent, through a penitentiary’s doors. Sharp v. Sigler, 408 F.2d 966, 970 (8 Cir. 1969); Jackson v. Bishop, 404 F.2d 571, 576 (8 Cir. 1968). And what better or more ideal place is there for free discussion and for the exchange of ideas than academic halls? See Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).
Long settled, too, is the principle that the first amendment freedoms of speech and of association are applicable to the states, either by the due process route of the fourteenth amendment or directly under the first amendment. See, for example, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).
On this issue, however, we need look no further than a recent decision of the Supreme Court concerning the application of first amendment rights in the academic environment. In Tinker v. Des Moines Ind. School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a case from this circuit, the Court first observed,
“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.” 393 U.S. at 506, 89 S.Ct. at 736.
and then held that the quiet and passive wearing by students of black armbands to protest government policy in Vietnam was within the protection of the Free Speech and Due Process Clauses of the first and fourteenth amendments. But the emphasis in the majority opinion is evident from the following:
“ * * * As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it.
* * * * * *
“ * * * On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school authorities, consistent with fundmental constitutional safeguards, to prescribe and control conduct in the schools. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.
“ * * * It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’
“The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.
“ * * * Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.
* * * * * *
“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.
* * * * * *
"* * * When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.
«-x- * * The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances.
***** *
“As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred” (citations omitted). 393 U.S. 505, 507-509, 512-514, 89 S.Ct. 737-738, 740.
That emphasis is on the. absence of “actually or potentially disruptive conduct” by the participants; on the need of school officials, consistent with constitutional safeguards, “to prescribe and control conduct in the schools”; on “a silent, passive expression” unaccompanied by any disorder or disturbance; on the absence of evidence of interference with the school’s work or with “the rights of other students to be secure and to be let alone”; on the absence of threats or acts of violence on school premises; on the absence of a finding of material interference “with the requirements of appropriate discipline in the operation of the school”; and on the absence of material disruption of classwork or “substantial disorder or invasion of the rights of others.” J"It is obvious that where there is actual or potentially disruptive conduct, or disorder or disturbance by the petitioners, or interference with the work of the school or of the rights of other students, or threats or acts of violence on the school premises, or substantial disorder, then reasonable action by school authorities is constitutionally permitted. There must, however, be more than mere fear and apprehension of possible disturbance^
This emphasis, and the distinction between what is constitutionally permissible and what is not, is also apparent in the Court’s denial of certiorari, 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217, in Barker v. Hardway, 399 F.2d 638 (4 Cir. 1968), a per curiam opinion which in turn had affirmed the dismissal of an action to enjoin enforcement of suspension of state college students. 283 F.Supp. 228 (S.D.W.Va.1968). Mr. Justice Fortas, who wrote the majority opinion in Tinker, concurred in the denial of certiorari in Barker with observations that the Barker petitioners were suspended “not for expressing their opinions on a matter of substance, but for violent and destructive interference with the rights of others”, and that the findings established that the petitioners were “engaged in an aggressive and violent demonstration, and not in peaceful, nondisruptive expression.” Their conduct, therefore, was “clearly not protected by the First and Fourteenth Amendments.”
So it is here. Judge Hunter’s findings have been quoted above. We have found them sufficiently supported by the record. They, too, concern an aggressive and violent demonstration and something quite apart from “peaceful, nondisruptive expression.” They, too, focus upon “destructive interference with the rights of others.” They disclose actual or potentially disruptive conduct, aggressive action, disorder and disturbance, and acts of violence and participation therein by these plaintiffs. Their conduct, therefore, was not protected by the first and fourteenth amendments.
3. The regulations. These are additionally attacked for vagueness and overbreadth and hence on substantive due process grounds. Some of the loyalty oath cases are cited and it is said that the regulations’ word “unlawful” is only a legal conclusion and that their references to “unruly” and “spectators” and “which might be considered” are undefined and possess no standards. The regulations are likened to city ordinances which have been struck down when they lack sufficiency of definition.. It is then argued that “young people; should be told clearly what is right and \ what is wrong, as well as the consequences of their- acts.” Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and other cases are cited. Finally, it is said that the regulations impinge and have a chilling effect upon first and fourteenth amendment rights.
The answers to all this, we think, are several. First, the college’s regulations, per se, do not appear to us to constitute the fulcrum of the plaintiffs’ discomfiture. The charges against Esteban and Roberds did not even refer to the regulations. Roberds was disciplined because he had participated in the demonstrations in the face of specific warning delivered by personal interview with the dean. This was defiance of proper college authority. Esteban was disciplined because of his refusal to comply with an appropriate request by Doctor Meverden and because of his childish behavior and -obscenity toward college officials. This, too, was defiance of proper college authority. There was no confusion or unawareness in either case. The exercise of common sense was all that was required. Each plaintiff knew the situtation very well, knew what he was doing, and knew the consequences. Each, we might note, had had prior disciplinary experience, Their respective protestations of young and injured innocence have a hollow ring.
Secondly, we agree with Judge Hunter that it is not sound to draw an analogy between student discipline and criminal procedure, that the standard of conduct which a college seeks to impose must be one relevant to “a lawful mission, process or function of the educational institution”, and that,
“ * * * Certainly the regulation concerning mass demonstrations, reasonably interpreted, and as interpreted and applied by the college in the instant case to a participant in student mass demonstrations involving unlawful conduct such as the illegal blocking of a public highway and street, and the destruction of school property, is relevant to a lawful mission of the educational institution.” 290 F.Supp. at 629. [Footnote omitted]
Thirdly, we do not find the regulation at all difficult to understand and we are positive the college student, who is appropriately expected to possess some minimum intelligence, would not find it difficult. It asks for the adherence to standards of conduct which befit a student and it warns of the danger of mass involvement. We must assume Esteban and Roberds can read and that they possess some power of comprehension. Their difficulty was that they chose not to read or not to comprehend.
Fourthly, we see little basically or constitutionally wrong with flexibility and reasonable breadth, rather than meticulous specificity, in college regulations relating to conduct. Certainly these regu-J lations are not to be compared with the criminal statute. They are codes of general conduct which those qualified and experienced in the field have characterized not as punishment but as part of the educational process itself and as prefera-I bly to be expressed in general rather v than in specific terms. See E. Williamson and J. Foley, Counseling and Discipline, 79-83 (1949); E. Williamson, Student Personnel Services in Colleges and Universities, 166 (1961); Brady and Snoxell, Student Discipline in
Question: What is the specific issue in the case within the general category of "First Amendment - speech and other expression"?
A. obscenity
B. association
C. federal internal security and communist control acts, loyalty oaths, security risks
D. legality of expression in context of overt acts (speeches, parades, picketing, etc.) protesting race discrimination
E. overt acts - opposition to war and the military
F. conscientious objection to military service or other first amendment challenges to the military
G. expression of political or social beliefs conflicting with regulation of physical activity (includes demonstrations, parades, canvassing, picketing)
H. threats to peace, safety ,and order (except those covered above) (includes fighting words, clear and present danger, incitement to riot)
I. challenges to campaign spending limits or other limits on expression in political campaigns
J. other (includes tests of belief)
Answer:
|
songer_respond2_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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.
HOSPAH COAL COMPANY, a Delaware corporation, Santa Fe Industries, Inc., a Delaware corporation, The Atchison, Topeka & Santa Fe Railway Company, a Delaware corporation, and Santa Fe Mining, Inc., a Kansas corporation, Plaintiffs-Appellees, v. CHACO ENERGY COMPANY, a New Mexico corporation, and Texas Utilities Company, a Texas corporation, Defendants-Appellants.
No. 82-1149.
United States Court of Appeals, Tenth Circuit.
March 29, 1982.
Certiorari Denied June 1, 1982.
See 102 S.Ct. 2299.
John R. Cooney of Modrall Sperling Roehl Harris & Sisk, Albuquerque, N. M. (Gus Svolos, Chicago, Ill., and Allen C. Dewey, Peter J. Adang, and John S. Thai of Modrail Sperling Roehl Harris & Sisk, Albuquerque, N. M., with him on the brief), for plaintiffs-appellees.
Gordon B. Spivack of Lord, Day & Lord, New York City (M. D. Sampels, Richard L. Adams, and Max E. Freeman II of Worsham, Forsythe & Sampels, Dallas, Tex., John N. McBaine, Jonathan M. Jacobson, Jonathan E. Clune, and Elinor R. Hoffmann of Lord, Day & Lord, New York City, James C. Ritchie and Rex Throckmorton of Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, N. M., and Walter A. Steele of White & Steele, P. C., Denver, Colo., with him on the briefs), for defendants-appellants.
Before BARRETT, DOYLE and McKAY, Circuit Judges.
BARRETT, Circuit Judge.
This is an appeal from a grant of a preliminary injunction by the United States District Court for the District of New Mexico. The pertinent facts follow:
On December 18, 1981 Chaco Energy Company (Chaco) and Texas Utilities Company (TUC), defendants-appellants herein, filed suit in the United States District Court for the Northern District of Texas naming as defendants, among others with whom we áre not now concerned, Santa Fe Industries, Inc. (SFI), the Atchison, Topeka and Santa Fe Railway Co. (SFR) and Santa Fe Mining, Inc. (SFM). The complaint in the Texas action alleged a conspiracy on the part of SFI, SFR, SFM and others amounting to a violation of the federal and New Mexico antitrust laws. The complaint further alleged common law fraud in the inducement and sought declaratory judgment, rescission of contracts, treble damages and injunctive relief.
Three days later, on December 21, 1981, SFI, SFR, SFM and Hospah Coal Company, a non-party defendant, co-conspirator in the Texas action, filed a declaratory judgment action in the United States District Court for the District of New Mexico, naming TUC and Chaco as defendants. The complaint in the New Mexico action requested a declaration that the plaintiffs had not violated the antitrust laws and it sought an injunction against TUC and Chaco to prohibit them from proceeding, with the Texas action. The basis for the requested preliminary injunction was a venue selection clause in a certain coal lease placing venue in New Mexico for all suits “arising out of or relating to” the coal lease. The coal lease was signed by Hospah Coal Company and Chaco. A surety agreement between TUC and Hos-pah purportedly adopted the venue selection clause of the coal lease. It should be noted that Hospah Coal Company, SFM and SFR are all subsidiaries of SFI. Chaco is a subsidiary of TUC.
Service of process was accomplished in the New Mexico action prior to service in the Texas action. In response to the filing of the New Mexico action, TUC and Chaco sought a temporary restraining order against SFM, SFR, SFI and Hospah in the Texas district court. The Texas court declined to issue the TRO.
Thereafter, on January 11,1982, the New Mexico district court issued a preliminary injunction enjoining TUC and Chaco from proceeding further in the Texas action. On January 14, 1982, Hospah, SFI, SFM and SFR filed a motion to stay or in the alternative to dismiss the Texas action in the Texas court. They did so in light of the New Mexico injunction. The Texas court issued an order requiring TUC and Chaco to respond to the motion to stay. TUC and Chaco then filed in the New Mexico court a motion to suspend the preliminary injunction in order to allow them an opportunity to respond to the stay motion in the Texas action. The New Mexico court denied the motion to suspend the injunction. Thereupon, TUC and Chaco filed this appeal, together with a motion to stay the New Mexico injunction pending appeal and a motion to expedite hearing of the appeal. We granted the motion to stay the injunction pending appeal and we expedited the hearing.
Prior to the denial of the motion to suspend the injunction in the New Mexico court, TUC and Chaco filed another suit in the same New Mexico court raising the same allegations as . those in the Texas action. TUC and Chaco also filed an answer and a counterclaim in the original New Mexico action. In all of their New Mexico filings, TUC and Chaco reserved their rights to object to venue.
The ultimate issue to be resolved is which court should exercise venue and hear the case. Thus, the issue before us is which court should make the determination on the ultimate issue of venue.
Both parties recognize the general rule that when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case. O’Hare International Bank v. Lambert, 459 F.2d 328 (10th Cir. 1972), and cases cited therein. The parties disagree, however, as to where jurisdiction first attached. TUC and Chaco contend that the Texas court obtained jurisdiction first because the complaint was filed in that court prior to the filing of the complaint in the New Mexico court. Hospah, SFI, SFR and SFM contend that because service of process was accomplished first in the New Mexico action, jurisdiction attached first in the New Mexico court.
This circuit has adopted the rule announced in Barber Greene Company v. Blaw-Knox Company, 239 F.2d 774, 778 (6th Cir. 1957) that, “in both in rem and in personam actions, jurisdiction relates back to the filing of the complaint.” Accord, Product Engineering and Manufacturing, Inc. v. Barnes, 424 F.2d 42 (10th Cir. 1970). The rule that jurisdiction relates back to the filing of the complaint gives effect to Fed.Rules Civ.Proc. rule 3, 28 U.S.C.A., which provides that, “[a] civil action is commenced by filing a complaint with the court.” Accordingly we must hold that jurisdiction over the parties and issues herein attached first in the Texas district court.
In O’Hare International Bank v. Lambert, supra at 331, we recognized this exception to the first-to-file rule: “[t]he only justification for employment of injunctive power by a court in a case such as this is to prevent a misuse of litigation in the nature of vexatious and oppressive foreign suits.” The New Mexico district court ruled that the Texas action was vexatious, and the injunction was issued on that basis. Apparently, the New Mexico court perceived the Texas action as an attempt by TUC and Chaco to circumvent the venue selection clause in the coal lease.
The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum. The applicability of the venue selection clause is an issue of fact in and of itself. We do not consider it vexatious for a party to raise this issue in a forum other than the one designated in the venue selection clause.
Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A., requires a party to assert a defense of improper venue by way of motion or responsive pleading. If we were to permit a party to object to venue by filing suit for injunctive relief in a separate forum, we would, in essence, be rendering rule 12(b) a nullity. The fact that a venue selection clause is involved does not negate the requirements of rule 12(b). Were it otherwise, a party to such a contract would be invading the province of the courts to decide issues of venue. Such an interpretation of the effect of a venue selection clause generated the initial dislike of the courts for such clauses. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).
In a similar vein, § 1404(a), 28 U.S.C.A. establishes a procedure whereby a party may request a change of venue. If we were to allow a party who desires or asserts a right to litigate his suit in a court other than that where the challenged suit is first filed, we would render the procedures outlined in § 1404(a) little more than an exercise in futility.
Hospah, SFI, SFR and SFM chose to totally ignore the requirements of Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A. and failed to avail themselves to the procedures outlined in § 1404(a), 28 U.S.C.A. Instead they went directly to the New Mexico court and asked for an injunction.
The authorities relied upon by Hospah, SFI, SFR, and SFM to support their procedure, Columbia Plaza Corp. v. Security Nat. Bank, 525 F.2d 620 (D.C.Cir.1975), William Gluckin Co. v. International Platex Corp., 407 F.2d 177 (2d Cir. 1969), among others, in turn rely upon Kerotest Mfg. Co. v. C-0-Two Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952) for the proposition that the first-to-file rule is not entitled to “mechanical application”. We agree to the extent we find that Kerotest stands for the proposition that simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case. However, in Kerotest the Court pays great deference to the district court’s ability to decide if it should accept venue. We believe that Kerotest is in line with our view that the court which first obtains jurisdiction should be allowed to first decide issues of venue.
The manufacturer who is charged with infringing a patent cannot stretch the Federal Declaratory Judgments Act to give him a paramount right, to choose the forum for trying out questions of infringement and validity. He is given an equal start in the race to the courthouse, not a headstart. " If he is forehanded, subsequent suits against him by the patentee can within the trial court’s discretion be enjoined pending determination of the declaratory judgment suit, and a judgment in his favor bars suits against his customers. If he is anticipated, the court’s discretion is broad enough to protect him from harassment of his customers. If the patentee’s suit against a customer is brought in a district where the manufacturer cannot be joined as a defendant, the manufacturer may be permitted simultaneously to prosecute a declaratory action against the patentee elsewhere. And if the manufacturer is joined as an unwilling defendant in a forum non conveniens, he has available upon an appropriate showing the relief provided by § 1404(a) of the Judicial Code. 62 Stat. 869, 937, 28 U.S.C. § 1404(a).
342 U.S. at pp. 185, 186, 72 S.Ct. at p. 222 [Emphasis supplied]. [Footnotes omitted].
In summary, the declaratory judgment action cannot be used as a substitute for the rules of civil procedure in response to a pending lawsuit, Public Service Comm’n. v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952), Product Engineering and Manufacturing, Inc. v. Barnes, supra nor can declaratory judgment be used as yet another weapon in a game of procedural warfare. Kerotest Mfg. Co. v. C-0-Two Co., supra.
The motion to dismiss this appeal as moot filed February 19,1982, by plaintiffs-appellees is denied. The motion to reinstate preliminary injunction pending appeal filed February 19, 1982, by plaintiffs-appellees is denied.
The cause is remanded to the district court with instruction to dismiss the preliminary injunction.
. Hospah, SFI, SFR and SFM also asserted that the Texas action should not be allowed to proceed because Hospah was an indispensable party to that action. Inasmuch as the New Mexico court did not specifically address that issue, but rather issued the injunction upon finding that the venue selection clause controlled, we do not deem it necessary to address that issue. In any event, the defense of failure to join an indispensable party is properly the subject of a rule 12(b) motion, FRCP, 28 U.S.C.A.
. While we are not here in a position to rule on the applicability of the venue selection clause, we are of the view that the case presents a genuine issue of fact in that regard. In light of the fact that the Texas complaint alleges a conspiracy commencing on or about 1974 and the lease containing the selection clause was not entered into until 1977 it is not clear to us that the venue selection clause controls. Furthermore, it is not readily apparent to us that the lease is binding on parties to this lawsuit who are not parties to the lease. These are factors for the district court to consider.
. Hospah, SFI, SFM and SFR intimated throughout that because the outcome of this litigation would affect Texas consumers, their rights may not be adequately protected in the Texas courts. The Court in Kerotest addressed a similar argument. There, the Court said, “Such apprehension implies a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.” 342 U.S. at p. 185, 72 S.Ct. at p. 222.
. Although these cases involve federal-state relationships, the underlying principles are equally applicable tp comity between the federal courts.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_appel1_5_2
|
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 appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Michael Ray ORNDORFF, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. James William HOLMES, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Hoyt Franklin CLINES, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Darryl V. RICHLEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Michael Ray ORNDORFF, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. James William HOLMES, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. Hoyt Franklin CLINES, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. Darryl V. RICHLEY, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant.
Nos. 88-2344, 88-2405.
United States Court of Appeals, Eighth Circuit.
Submitted April 13, 1989.
Decided June 19, 1990.
Gerald A. Coleman, West Memphis, Ark., for appellants.
Jack Gillean, Little Rock, Ark., for appel-lees.
Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
BOWMAN, Circuit Judge.
Michael Ray Orndorff, James William Holmes, Hoyt Franklin Clines, and Darryl V. Richley (petitioners) appeal, and A. L. Lockhart cross-appeals, from the judgment of the District Court granting petitioners partial habeas corpus relief. We affirm in part, vacate in part, and remand for further proceedings.
In October 1981 petitioners were found guilty of the murder of Don Lehman in Rogers, Arkansas and were sentenced to death. The convictions were affirmed on direct appeal, Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984), and post-conviction relief was denied, Clines v. State, 282 Ark. 541, 669 S.W.2d 883 (1984). Petitioners filed petitions for habeas corpus relief in the District Court pursuant to 28 U.S.C. § 2254 (1988) in June 1984, and the cases were consolidated for joint disposition. After conducting an evidentiary hearing, the District Court issued a thorough memorandum and order from which the parties now appeal.
Although petitioners raised a number of grounds for habeas relief in the District Court, the principal issue below, and the ground upon which the District Court granted relief, concerned the state trial court’s admission into evidence of the testimony of Vickie Lehman, the victim’s daughter and a key prosecution witness. Unbeknownst to petitioners or to their trial counsel, Vickie and her mother Virginia Lehman had been placed under hypnosis by one Gene Peters roughly one month after the murder at the behest of the prosecutor. As the District Court found:
During the sessions Peters would try to get his subjects to revisualize and relive the events of January 8 [1981] and, following each session, he and the Lehmans would report to the prosecutor’s office. Peters took notes of each session but no electronic recording devices were used. His notes were never turned over to the prosecutor and have since been destroyed. Neither Peters [n]or the prosecutor have any record of the questions asked and the responses given.
Orndorff v. Lockhart, 707 F.Supp. 1062, 1066 (E.D.Ark.1988). Petitioners’ attorneys did not learn that Vickie Lehman had been hypnotized prior to trial until after they had filed the direct appeal in the Arkansas Supreme Court. Id.
The District Court ruled that the prosecutor’s failure to apprise opposing counsel that Vickie Lehman had undergone hypnosis violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, and that the use of her testimony at trial was not harmless error. In fashioning its remedy, however, the District Court permitted the state, as an alternative to retrying petitioners, to commute their death sentences to life imprisonment without the possibility of parole. Petitioners appeal from this ruling, claiming that the District Court erred in permitting the state the option of commutation. Lockhart concedes that the use of Vickie Lehman’s testimony without disclosure of her hypnosis was constitutional error, but cross-appeals from the District Court’s finding that the error was not harmless.
Given the scope of the cross-appeal, we assume without deciding that the District Court was correct in holding that the use of Vickie Lehman’s post-hypnotic testimony violated the Confrontation Clause. In the District Court, petitioners sought to establish that the use of this testimony was not harmless error by demonstrating that Vickie Lehman’s trial testimony differed significantly from statements she had given the police shortly after the crime occurred; the state sought to show that any variations were not material and that the error was therefore harmless. At issue were some 137 instances of such variations. Our difficulty with the District Court’s treatment of the hypnosis issue stems from the fact that, although it purported to make a harmless-error inquiry, the District Court did not analyze these variations but rather held that the prosecutor’s failure to disclose that Vickie Lehman had been hypnotized was “inherently prejudicial.” Orndorff, 707 F.Supp. at 1069. The District Court reasoned that Vickie Lehman’s testimony at trial was “inherently prejudicial” because post-hypnotic testimony may, generally speaking, appear more credible than ordinary testimony since the witness, through hypnosis, may gain a heightened conviction that what he or she believes to be the truth actually represents reality. See id. We believe this resolution of the harmless error inquiry to be unsound.
Assuming that the prosecutor’s nondisclosure of Vickie Lehman’s hypnosis ran afoul of the Confrontation Clause, that error is not harmful simply because the jury might have found her testimony less credible had defense counsel been able to probe the issue of her hypnosis on cross-examination. The fact that defense counsel was denied use of a legitimate means of cross-examining an adverse witness is not in and of itself grounds for disturbing a guilty verdict. See Delaware v. Van Arsdall, 475 U.S. 673, 680-81, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986). The District Court’s view of the matter, we believe, amounts to the contrary view, since it premises a finding of harmful error on little more than the (presumptively) enhanced credibility of Vickie Lehman’s testimony and defense counsel’s inability to counteract it. As the Supreme Court stated in Van Arsdall:
The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors ... including] the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. 475 U.S. at 684, 106 S.Ct. at 1438 (citations omitted).
We believe that the inquiry into the issue of harmless error in this case must begin with a comparison of Vicki Lehman’s pre-hypnosis statements with her trial testimony in light of Van Arsdall. The District Court should make this comparison with an eye toward sorting those things about which Vicki Lehman could testify without aid of hypnosis (that is, from actual memory) from those things about which she could testify only after being hypnotized. Unless this sorting process reveals significant variations, the error should be deemed harmless.
We therefore vacate the judgment of the District Court in part and remand the matter to the District Court for further proceedings. The District Court already has determined that, beyond a reasonable doubt, the error here (if indeed there was harmful error) affected only the penalty phase of the trial, not the jury verdict finding petitioners guilty as charged.
The court’s review of the entire record does reveal, beyond a reasonable doubt, that the petitioners were responsible for the robbery homicide for which they were tried. Their activities in preparation for the armed break-in and the events which later lead to their apprehension were fully documented through the testimony of thirty four prosecution witnesses. However, even though there is no question of their guilt for the crimes charged, the court is unable to say with confidence that the jury would have recommended the death penalty for each and every petitioner had defense counsel been informed of Vicki Lehman’s hypnosis. Critical portions of her testimony may have been disregarded by the jury had they known of the effects of hypnosis, or the trial court may have deemed some testimony inadmissible altogether. Cf. Little v. Armontrout, [835 F.2d 1240 (8th Cir.1987)], supra (trial court’s refusal to appoint an expert in hypnosis for an indigent defendant violated due process and rendered the trial fundamentally [unjfair).
Orndorff v. Lockhart, 707 F.Supp. at 1070. Having reviewed the record, we are thoroughly satisfied, as was the District Court, that the harmful error here (if any) goes only to the imposition of the death penalty and not to the jury verdict finding petitioners guilty of capital felony murder. The evidence of petitioners’ guilt, even without Vicki Lehman’s testimony, is overwhelming.
Lockhart argues that, because the District Court found error affecting only the penalty phase of the trial, the court erred in ordering that the writ of habeas corpus issue unless the state either retries petitioners or commutes their death sentences to life without parole. We agree. In a habeas case, no less than any other, the remedy must be commensurate with the harm. Accordingly, if in light of this opinion the District Court finds on remand that the use of Vicki Lehman’s testimony was not harmless error insofar as its effect upon the jury's recommendation that petitioners receive the death penalty is concerned, the court’s order granting habeas relief should give the state the option of either conducting a new sentencing proceeding or reducing the sentences to life without parole. See Pickens v. Lockhart, 714 F.2d 1455, 1469 (8th Cir.1983).
We have considered petitioners’ additional claims of error and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is affirmed in part, vacated in part, and the matter remanded for further proceedings consistent with this opinion.
. The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas.
. For example, in Byrd v. Armontrout, 880 F.2d 1 (8th Cir.1989), we stated that any error with regard to the admission of post-hypnosis testimony fell short of constitutional magnitude where the record showed that the hypnosis did not affect the witness's testimony on any major point. 880 F.2d at 10, n. 10. We made this observation despite defendant's contention that the witness's belief in her post-hypnosis testimony had been enhanced by the hypnosis. See Byrd, 686 F.Supp. 743, 771 (E.D.Mo.1988). Similarly, in Williams v. Armontrout, 877 F.2d 1376 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990), we concluded that even though hypnosis had rendered a witness’s in-court identification of the defendant unreliable, habeas relief was not warranted because this identification "did not contribute to the conviction." Id. at 1380-81.
. Having adjudicated the issue of the use of Vickie Lehman's testimony within the context of the Confrontation Clause, we need not consider whether the use of her testimony offends due process, as resolution of the due process claim would not affect in any way our disposition of this appeal.
. In its cross-appeal the state also argues that the District Court erred in granting habeas relief to defendants Orndorff and Clines because they had requested the District Court not to consider any claim that would result only in the commutation of their death sentences to life imprisonment without parole, and to defendant Richley, who had moved the District Court to dismiss his habeas petition. However, in the joint reply brief filed by all four petitioners, they argue that the District Court did not err in granting habeas relief to all of them. We take this to constitute an abandonment by Orndorff, Clines, and Richley of the positions they took in this regard in the District Court, which abandonment renders the issue moot and thus not properly before us in this appeal.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_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
Merle R. JENKINS, et al. v. Michael A. STERLACCI, Appellant.
No. 87-7108.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 18, 1988.
Decided June 10, 1988.
As Amended June 21, 1988.
Opinion on Denial of Rehearing Sept. 6, 1988.
Raymond D. Battocchi, Washington, D.C., for appellant.
James R. Treese, Alexandria, Va., for appellees.
Before WILLIAMS, D.H. GINSBURG, and BOGGS, Circuit Judges.
Of the U.S. Court of Appeals for the Sixth Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a).
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
The question raised by this appeal is whether the district court properly denied appellant’s motion to disqualify a special master who, while preparing a report in this case, represented a client in an unrelated proceeding in which a member of the law firm representing appellant served as opposing counsel. In order to resolve this question, we must assay the degree to which each member of a law firm is charged with knowledge about the activities of every other member of the firm, the ethical responsibilities of a special master, and the standards to be applied by the district court in addressing a motion to disqualify a special master.
I. Background
The underlying dispute in this case arises from the souring of relations among attorneys who had been in partnership. In 1977, the appellant, Michael Sterlacci, and the appellees, Merle Jenkins and Dennis Nystrom, agreed to form a partnership to practice law in Washington, D.C. At the time, Nystrom and Jenkins were principals in a law firm headquartered in Southfield, Michigan. The parties agreed that Sterlac-ci would assume management responsibilities in the Washington office; it was further agreed that he would not play an active role in the legal or managerial affairs of the Michigan office. Administration of the firm was centralized at the Michigan office, which maintained the accounting records of, and paid bills pertaining to, the Washington office. Attorneys practicing out of the Washington office billed their clients directly, but all fees were to be sent to the Michigan office for deposit in a separate account maintained there for the Washington office. The Michigan office generated monthly profit and loss statements for the Washington office.
In December 1981, the parties agreed to close the Washington office after the Michigan partners determined that it was not a promising business venture. A series of financial disputes between the parties, however, prevented the immediate dissolution of the partnership. Unable to negotiate an acceptable distribution of the partnership assets, Nystrom and Jenkins filed suit against Sterlacci in the District of Columbia Superior Court, alleging inter alia, breach of contract and breach of fiduciary duties. Sterlacci removed the action to the district court, invoking its diversity jurisdiction, and counterclaimed in kind.
The district court found that Jenkins and Nystrom were liable for breach of contract to the extent that they failed to implement an agreed-upon compensation formula. The court also found that they breached their fiduciary duties by failing to abide by this formula in their bookkeeping practices. Sterlacci admitted that he had diverted fees from the Washington office’s billings into a local money market account he maintained with a colleague from that office.
The court ordered that a special master be selected under the Commercial Arbitration Rules of the American Arbitration Association, and charged the special master with determining the damages owing to the respective parties. Professor Harold C. Petrowitz of American University was appointed special master. In all proceedings before the district court and the special master, Sterlacci was represented by Raymond D. Battocchi, a member of the law firm of Cole and Groner, P.C.
We now draw our attention closely to the chronology of the end-game. Evidentiary proceedings before the special master were concluded on April 7, 1986; closing briefs were filed on April 23, 1986. On May 2, 1986, with the Sterlacci matter still before him for decision, special master Petrowitz, acting as an attorney on behalf of Radalab, Inc., filed an unrelated administrative appeal with the Office of Hearings and Appeals of the Small Business Administration (“SBA”). Radalab’s appeal challenged a determination that bore significantly on the success of Accusonics Systems, Inc. in securing a government contract. On May 9, 1986, therefore, Walter Fleischer notified the SBA that he represented Accusonics, and that his client wanted to participate as an interested party in Radalab’s appeal. The cases were no longer unrelated, for Walter Fleischer is a member of Cole and Groner, P.C.
On May 22, 1986, Fleischer filed a brief with the SBA opposing Radalab’s appeal. Petrowitz filed a response to Fleischer’s brief, concluding that “[t]he kindest description that can be accorded [Fleischer’s brief], riddled as it is with inaccuracies and specious assertions, is ‘unprofessional.’ ” On June 13, 1986, the SBA rejected Radal-ab’s appeal; whatever the merits of Fleischer’s brief, his position prevailed over that of attorney Petrowitz.
On July 15, 1986, special master Petrow-itz submitted his report in the Sterlacci case to the American Arbitration Association. Sterlacci’s counsel received the report the following day. On July 24, 1986, Sterlacci moved the district court to disqualify the special master and to vacate his report, alleging that Petrowitz’s participation as an attorney in the SBA proceeding raised reasonable doubts about his impartiality as a special master in this case, and that his report demonstrated that actual bias had infected his consideration of the damages issues.
Responding to this motion, the special master “strongly recommend[ed] that the motion be denied,” providing three reasons: (1) the special master could not have known that a member of Cole and Groner was involved in the SBA proceeding until after the initial pleadings had been filed; (2) once he became aware of Cole and Groner’s role in the SBA appeal, he “assumed with complete justification that all partners in the law firm of Sterlacci's counsel would be aware of his [i.e., Petrowitz’s] participation in” the Sterlacci case; and (3) the motion to disqualify was not filed until after his report had issued, raising “[t]he inescapable inference ... that [Sterlacci] and his counsel [were] dissatisfied with the Report ... and [used] an entirely fortuitous circumstance as a basis for avoiding whatever consequences the Report might have.”
The district court denied the motion to disqualify, concluding that there was “no indication of bias and no reason to disqualify the master.” Jenkins v. Sterlacci, C.A. No. 82-2010, Order at 4 (D.D.C. Dec. 16, 1986) (citing Morgan v. Kerrigan, 530 F.2d 401, 426 (1st Cir.1976)). Sterlacci appealed.
II. Appearance of Partiality
The American Bar Association Code of Judicial Conduct for United States Judges, which was approved by the Judicial Conference of the United States, directs a judge to “disqualify himself in any proceeding in which his impartially might reasonably be questioned.” Code of Judicial Conduct for United States Judges Canon 3.C(1); see also 28 U.S.C. § 455(a) (same standard applicable to “any justice, judge, or magistrate of the United States”). The Code further provides that “[a]nyone ... who is an officer of a judicial system performing judicial functions, including an officer such as a ... special master ... is a judge for the purpose of this Code.” Id. at 1-58. Plainly, then, special master Petrow-itz was obligated to disqualify himself in this case if, as Sterlacci argues, his participation might reasonably be regarded as raising the specter of partiality, unless, as Jenkins and Nystrom suggest, the parties effectively waived their objection. See id. Canon 3.D, compare 28 U.S.C. § 455(e) (parties may waive disqualification of judge based on appearance of partiality standard of § 455(a)); see United States v. Murphy, 768 F.2d 1518, 1540 (7th Cir.1985).
A. Standard Applied to Special Masters
The appellees argue that special masters should be held to a lesser standard of conduct than judges because they are subject to “control” by the district court. Within the framework of the Code, we take this argument to mean that a special master’s impartiality cannot as readily be questioned, by virtue of the district court’s supervision — in anticipation of which the master would keep to the straight and narrow path. As we explain more fully below, the district court’s oversight of the special master may indeed be important in cases where actual bias is alleged to have tainted proceedings before the special master. We cannot agree, however, that the control over the special master that a district court exercises is a sufficient basis for holding special masters to a lesser standard of conduct. As the Supreme Court has stated:
A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.
In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); see also Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897 (1974) (“[T]he inquiry must be not only whether there was actual bias on [the judge’s] part, but also whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ ”) (quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)).
It is this prophylactic protection against bias on the part of “[a]ny one ... performing judicial functions,” expressly including special masters, that Canon 3.C(1) of the Code of Judicial Conduct is designed to achieve. The court’s interest in the administration of justice, and the public’s confidence in the fairness of our judicial system, require no less. We would disserve both causes were we to suggest that some lesser standard may appropriately be applied to special masters by virtue of an imprecise, indeed merely probabilistic, assessment of the effectiveness that district court oversight of a special master’s findings may entail.
The circumstances of this case, which is altogether typical of many cases in which a special master is used, expose the danger of such an approach. Here, a special master was appointed by the district court to assist it in the laborious task of determining the amounts owing to the respective parties from the partnership for the practice of law. Apparently in order to enlist the expertise of an individual familiar with such matters, the court specified that the master, to be chosen by the American Arbitration Association, be a lawyer. That expertise was enlisted in this case to help the court resolve three specific factual disputes: (1) the cumulative net profit of the Washington office; (2) the amount of that profit that Jenkins and Nystrom had already received; and (3) the distribution of partnership assets deposited in the registry of the district court during the pendency of the litigation. Sterlacci, supra, Mem.Op. at 10 (D.D.C. June 21, 1984). The special master’s factual findings on these issues were reviewed by the district court only for “clear error,” as required by Rule 53(e)(2) of the Federal Rules of Civil Procedure. In the face of conflicting evidence, the “clear error” standard insulates a special master’s findings from reversal by the district court unless that court “is left with the definite and firm conviction that a mistake has been committed.” Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 547 F.2d 575, 580 (D.C.Cir.1976) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Thus, even though a special master’s findings may go against what the district court and this court believe to be the weight of the evidence, those findings may nonetheless be upheld. Id. In this respect, the special master occupies a position functionally indistinguishable from that of a trial judge.
Given the complexities of the issues special masters are frequently called upon to sort out, the closely disputed issues of fact they must resolve in the first instance, and the “clear error” standard governing the court’s review of their findings, the district court’s oversight of a special master falls far short of plenary “control”; there is a range within which a special master’s partiality may operate unchecked and uncheckable by the district court. For that reason, it is the special master who must, in the first instance, confront and consider — sensitively and thoroughly— whether personal, professional, financial, or social relationships may so infect his consideration of a case as to create genuine issues about his ability impartially to resolve close and difficult questions of fact. Cf. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1301 (D.C.Cir.1988) (noting that a judge’s assessment of his own impartiality or the possible appearance of impropriety “is not a decision that an appellate panel may make for a district court judge in the first instance.”). In considering questions of disqualification in situations where a special master’s impartiality is called into question, we hold that the special master must hold himself to the same high standards applicable to the conduct of judges. See United States v. Conservation Chemical Co., 106 F.R.D. 210, 234 (W.D.Mo.1985).
We do recognize, however, that unlike judges, special masters are often practicing attorneys. They therefore may wear different hats depending upon the professional function they are performing from one day to the next. In one matter they may be required to observe the impartial decorum of a decisionmaker, while in another they may be called upon to assume the perspective, and the partiality, of an advocate. This duality of roles places a burden on the special master with an active law practice, but its discharge does not require that once he has accepted an assignment as a special master, an attorney place his life as an advocate in a state of suspended animation. Such a requirement would be counterproductive, since many of the best qualified candidates would certainly forego service as a special master if, during that service, they were required to forego completely their private practice. Instead, it is sufficient, and necessary, that an individual who accepts an appointment as a special master scrupulously avoid any undertaking, as an advocate or otherwise, that would tend or appear to compromise his impartiality as a decisionmaker.
B. Waiver of Objection Based on Appearances
In this case, there is no disagreement among the parties that Petrowitz had no way of knowing, when he filed the administrative appeal before the SBA, that he would be opposed by the same law firm that had appeared on behalf of a party in the case over which he was presiding as special master; this point was clearly conceded at oral argument. We may conclude without hesitation, therefore, that the special master’s act of filing the administrative appeal was entirely proper. Any appearance of impropriety occasioned by the master’s participation in the SBA appeal arose only because Cole and Groner, through Fleischer, subsequently appeared as opposing counsel.
Both Fleischer and Battocchi filed affidavits indicating that they were unaware that Professor Petrowitz had donned both the role of decisionmaker and the role of opposing counsel when Cole and Groner entered the SBA proceedings; they became aware of the potential conflict only after the fact, and only because of a happenstance conversation between them. We have not the slightest reason to doubt their account of how the matter came to their attention. The lack of actual knowledge as between members of a law firm, however, is not dispositive of the issue before us. District of Columbia law provides:
Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.
D.C.Code Ann. § 41-111 (1981).
Obviously, as counsel for Sterlacci, Battocchi individually knew that Petrowitz was serving as special master in his dispute with Nystrom and Jenkins; and since his representation in that case was undertaken in his capacity as a member of the firm of Cole and Groner, it was a “matter relating to partnership affairs.” We believe, moreover, that Battocchi “reasonably could and should have communicated” to his colleagues at Cole and Groner that he was participating in a proceeding in which Pe-trowitz acted as a special master. In order to avoid problems arising from the representation of clients with adverse interests, it is standard practice for law firms to assure that each partner is aware of the clients and matters with which the firm is involved. It will not unreasonably burden this conflict-avoidance procedure if partners are expected also to notify each other of the special masters before whom they are appearing.
D.C. law thus charges Fleischer with constructive notice of Petrowitz’s role as special master in the Sterlacci case when he entered an appearance on behalf of Accusonics in the SBA proceeding in which Petrowitz was already counsel of record for Radalab. Charged with knowledge of Petrowitz’s potentially conflicting roles, Cole and Groner had to choose between alternative courses of action: either (1) decline to represent Accusonics in the SBA appeal proceeding, or (2) proceed with that representation, after full disclosure to, and agreement by, both Accusonics and Sterlacci, thereby waiving any objection to the special master’s continued participation in Sterlacci based on the appearance of a conflict of interest. The firm could not reasonably suggest that, instead, Petrowitz withdraw from either proceeding because of an appearance of impropriety that it created by its own actions, which were no doubt taken only because of a failure to communicate relevant information within the firm.
The choice between these alternatives was never consciously made, of course, because neither Fleischer nor Bat-tochi was actually aware of the critical details of the matter in which the other was involved on behalf of the partnership. Indeed, even if their firm had an optimally effective conflict-avoidance procedure, there would always be some risk that a partner would lack actual knowledge of such a conflict. Accordingly, it would have been desirable for the special master to have pointed the potential problem out to the respective attorneys when it came to his attention. Indeed, as a special master, Petrowitz was ethically required to make such a disclosure if, as we may fairly assume, his impartiality might otherwise have reasonably been questioned. See Code of Judicial Conduct, supra, Canon 3.D (one disqualified by reason of appearance only may, instead of withdrawing, disclose on record basis of disqualification, which parties and lawyers may waive); 28 U.S.C. § 455(e) (same); American Arbitration Ass’n, Code of Ethics for Arbitrators in Commercial Disputes Canon 11.A-C (1977) (requiring arbitrators to disclose, “at any stage of the arbitration,” any relationships that “might reasonably create an appearance of partiality or bias”). If disclosure had been made, Cole and Groner, and its clients, could have made an informed decision about which of the alternatives open to them would best serve their respective interests. Regrettably, however, the special master assumed away this responsibility, choosing to rely instead on the law firm’s obligation to make all of its members aware of each of its members’ partnership affairs.
This case, therefore, involves complementary failures on the parts of both Cole and Groner and of special master Petrowitz effectively to disclose among themselves the problems created by Fleischer’s participation in the SBA proceeding. While the special master’s failing in this regard is not excusable, neither is it decisive in view of the statutory imputation of knowledge to Cole and Groner. Their objection to the special master’s participation in the Sterlacci case is thus waived to the extent that it rests upon the appearance of impropriety, as opposed to actual bias.
Our conclusion that the objection is waived would stand, even apart from the constructive notice provision of the District of Columbia partnership law, on the extreme untimeliness of the appellant’s motion to disqualify. That motion came only after proceedings before the special master had been completed and the special master’s report had been filed. As we recently held, “[a] motion for recusal based upon the appearance of impropriety can have only prospective effect.” Liberty Lobby, 838 F.2d at 1302 (citing Murphy, 768 F.2d at 1539). A motion to disqualify a special master should be subject to the same limitation.
III. Actual Bias
Sterlacci argues, in the alternative, that the special master should be disqualified, and his report vacated, because the report and the SBA proceedings demonstrate that Petrowitz was actually biased against Cole and Groner, and hence against their client. This portion of appellant’s motion is unaffected by the waiver occasioned by Fleischer’s participation in the SBA proceeding. See Code of Judicial Conduct, supra, at Canon 3.C.(1)(a) (disqualification for “personal bias or prejudice concerning a party”); id. at Canon 3.D (same not waiva-ble); cf. Murphy, 768 F.2d at 1540 (§ 455 read to same effect). Thus, even though a party may have waived any “appearance” problems arising in proceedings before a special master, the district court may, upon motion, properly review a claim of actual bias.
A party alleging actual bias on the part of a judge must prove that claim by evidence of the judge’s extra-judicial conduct or statements that are plainly inconsistent with his responsibilities as an impartial decisionmaker. Liberty Lobby, 838 F.2d at 1301; United States v. Haldeman, 559 F.2d 31, 132-34 & n. 297 (D.C. Cir.1976) (en banc). Because, as we concluded above, special master Petrowitz performed a role functionally indistinguishable from that of a judge, the same standard applies to Sterlacci’s claim that Petrowitz was actually biased against him.
The only evidence of actual bias drawn from extra-judicial sources that Sterlacci has presented to us is in the papers Petrowitz filed with the SBA on behalf of Radalab, Inc. These papers, Ster-lacci contends, “contained unprovoked am-mony and unwarranted personal attacks upon Fleischer,” and thus demonstrate Pe-trowitz’s actual bias or prejudice against Cole and Groner. While the ad hominem aspect of Petrowitz’s filings is a bit unusual, see, e.g., supra at p. 4, we cannot say that cantankerous remarks of this type are clearly beyond the bounds of proper advocacy. There is, moreover, simply no evidence that Petrowitz’s loss, in his professional capacity as an advocate before the SBA, affected him personally, so as to raise a concern that he would try to “even the score” with Cole and Groner in his capacity as the special master in Sterlacci. On average, each attorney suffers a comparable loss in fully one half the contests he enters; in only the rare instance, however, is a lawyer thereafter incapable of respecting his adversaries and maintaining amicable professional relations with them. There is no evidence of that failing chargeable to special master Petrowitz.
On the evidence presented to us, we can conclude nothing more than that Petrow-itz’s involvement in the SBA proceeding as an advocate raised a substantial question as to whether he should have been disqualified on the basis that these activities raised the appearance of a conflict of interest. That objection, as we have shown above, Sterlacci waived.
IV. Conclusion
The district court in this case found “no indication of bias and no reason to disqualify the master.” Having determined that Sterlacci waived any disqualifying appearance of impropriety, we have reviewed with care the specific examples that Sterlacci has cited as evidence of actual bias. We have found that this evidence is not probative of actual bias on the part of the special master. Accordingly, the judgment of the district court is
Affirmed.
. In Morgan v. Kerrigan, 530 F.2d 401, 426 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976), the First Circuit stated:
Since special masters ... are subject to the control of the court and since there is a need to hire individuals with expertise in particular subject matters, masters ... have not been held to the strict standard of impartiality that are applied to judges.
For the reasons stated in the text, we find this reasoning unpersuasive; we believe that, at least insofar as special masters perform duties functionally equivalent to those performed by a judge, they must be held to the same standards as judges for purposes of disqualification.
. As we explain below, the untimeliness of the motion to disqualify and the unique circumstances of this case effectively prevented the special master from undertaking a searching inquiry into his ability impartially to resolve the damages issues in this case. We do note, however, that the special master responded thoroughly to appellant’s allegations of actual bias.
. We need not consider the consequences, apart from its effect, if any, on the motion to disqualify, attending the special master’s failure to disclose the potential conflict created by Cole and Groner’s appearance before the SBA. The ethical obligations found in the Code of Ethics for Arbitrators in Commercial Disputes are not enforced through judicial review, as noted therein.
. While we express no view on the firm’s responsibilities to its clients, we recognize that the clients’ interests are among those most immediately to be protected by effective communication among members of a law firm and timely disclosure of possible conflicts of interests.
. In United States v. Murphy, the Seventh Circuit intimated that where the facts surrounding a judge’s possible conflicts are or should be known by the parties in a case before that judge, disqualification based on the appearance of partiality may be waived, even though the judge makes no attempt to disclose the potential conflict. Murphy, 768 F.2d at 1540-41. We believe the same rule should be applied to a knowledgeable party before a non-disclosing special master, although we reiterate that disclosure should have been made.
. Counsel for appellant forthrightly drew the attention of the court to this recent precedent, which was decided after the close of briefing, but counsel made no attempt to distinguish the case.
. Not surprisingly, the special master's report, on its face, contains no evidence of actual bias stemming from extra-judicial sources. Sterlacci argues nonetheless that the report provides probative evidence of actual bias because it "resolves virtually every disputed issue against [him], and arrives at an ultimate award to him which is unreasonably low.” Sterlacci apparently argues, in other words, that the findings in the report can be related to an extra-judicial source of prejudice, namely, Petrowitz’s advocacy before the SBA. Thus, Sterlacci would have us engage in a more painstaking review than the "clear error” standard of Rule 53 mandates.
Even if such review were appropriate, and we are convinced that it is not, Sterlacci’s claim must fail. As a means of establishing actual bias, a court's efforts to relate a master’s findings to extra-judicial actions that are sufficient to raise a substantial question about disqualification on the basis of appearances, but are insufficient in themselves to establish actual bias, would ultimately require a judgment too refined and much too calibrated in its distinctions to be practical. Such an undertaking would inevitably become an exercise in judicial speculation. Speculative conclusions of bias are, however, ultimately nothing more than conclusions deduced from "appearances.” Sterlacci has waived objections based on appearances, and they cannot be resurrected under the guise of "actual” bias.
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_6-3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
BOSTON & M. R. R. v. BENTUBO. BENTUBO v. BOSTON & M. R. R.
Nos. 4211, 4212.
Circuit Court of Appeals, First Circuit.
March 7, 1947.
John De Courcy, of Boston, Mass., for B. & M. R. R.
Searcy L. Johnson, Sp. Asst, to Atty. Gen., Philip W. Yager, of Washington, D. C., John F. Sonnett, Asst. Atty. Gen., Fen-dall Marbury, Atty., Department of Justice, of Washington D. C., and George F. Gar-rity, U. S. Atty., and William J. Koen, Asst. U. S. Attorney, both of Boston, Mass., for William Bentubo.
Before MAHONEY and WOODBURY, Circuit Judges, and HEALEY, District Judge.
WOODBURY, Circuit Judge.
These are cross appeals from a judgment ordering a petitioner under § 8 (e) of the Selective Training and Service Act of 1940, 54 Stat. 891, 50 U.S.C.A.Appendix, § 308(e) restored to the employment from which he resigned in order to volunteer for induction into the military service, and in addition awarding him as damages the wages he would have earned in that employment from the date of his application for restoration therein to the date on which he was in fact reemployed, less, however, the amount of his actual earnings in other employment during that interval. The respondent’s appeal raises the same question considered by us in Boston & Maine Railroad v. Hayes, 1 Cir., 160 F.2d 325. There is no occasion for us to discuss it any further in this opinion. The petitioner’s appeal raises the question of the statutory authority for the District Court’s action in reducing his damages by the amount he earned in outside employment while his application for restoration to his former employment with the respondent was pending.
So far as here material § 8(e) of the Act provides that “In case any private employer fails or refuses to comply” with the applicable reemployment provisions of the Act, “the district court of the United States for the district in which such private employer maintains a place of business shall have power”, upon application by one entitled to the benefits of those provisions “to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of such employer’s unlawful action.”
The petitioner contends that this language imposes a “categorical obligation” on private employers to restore returned veterans to their jobs, if they so desire, which is specifically enforceable and therefore “cannot be escaped or evaded by the payment of compensatory, damages as an alternative.” Hence he says that he is entitled to recover without deduction all the wages he would have earned but for his former employer’s unlawful action in refusing promptly to restore him to his job. And he says that Congress must have intended to have its language so interpreted because otherwise not only would veterans be made to “bear the burden of the employer’s default” but also there would be a tendency to encourage idleness on the part of veterans who have been wrongfully refused reemployment and who sue for reinstatement.
The respondent on the other hand contends that the provision that district courts “shall have power” as an incident to restoration in employment “to compensate” for “loss of wages”, clearly indicates that Congress intended only to make returning veterans who are wrongfully denied reemployment whole, not to redress a public injury; and that to accomplish this end Congress must have intended any award of damages in these cases to he discretionary with the district court. And it says that there is nothing to indicate any abuse of discretion in the action taken by the court below in the case at bar.
Read literally the language of the sub-section supports the respondent’s argument, and we think further support for that argument is to be found in the sub-section’s legislative history.
The reemployment provisions of ' the Selective Training and Service Act of 1940 as. originally drafted by the Senate Military Affairs Committee (86 Cong.Rec. 10079, sec. 8(d)) made a private employer’s failure or refusal to comply with its terms “an unfair labor practice within the meaning of and .for all the purposes of the National Labor Relations Act [29 U.S. C.A. § 151 et seq.].” No doubt had this provision been enacted into law it would have given veterans 'wrongfully refused reemployment the benefits of the “back pay” provision of § 10(c) of the National Labor Relations Act which directs the Labor Board, upon a finding after the required hearing of an unfair labor practice, “to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this chapter.” That is to say, it would have given the Labor Board, and presumably also the district courts, since they were given concurrent powers of enforcement and we must assume that Congress intended veterans to have the same remedies regardless of the tribunal to which they might resort, discretionary power both to order reemployment and also incidentally to award back pay or not as might be required in particular cases in order to effectuate the Congressional policy. See. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 189 et seq., 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217.
The foregoing provision, however, was eliminated from subsequent drafts of the Selective Training and Service Act, and the present one, providing that district courts, and district courts only, “shall have power”, as an incident to an order directing reemployment “to compensate” veterans wrongfully denied restoration to their former jobs “for any loss of wages” suffered by them because of their employer’s unlawful action, was substituted in its stead. Clearly one purpose of this amendment was -to eliminate the Labor Board as an agency for enforcing veteran’s reemployment rights. But, in view .of the language of the amendment and its legislative background, it hardly seems that Congress also intended fundamentally to alter the nature of the rights with respect to reemployment which it had previously given to veterans. Instead it seems to us more likely that .Congress in passing the amendment was still thinking in terms of a remedial right to lost wages. Certainly the language of the amendment ’(“shall have power * * * to compensate * * * for any loss of wages”) is more consistent with the granting of a remedy to veterans than with the imposition of a penalty upon their former employers.
And there are still other indications that this is the correct interpretation of § 8(e).
In the first place Congress did not make the right to reemployment absolute. It gave that right only when the employer’s circumstances had not so changed as to make it not only not impossible, but also not “unreasonable” for the employer to reemploy the veteran. It must therefore have envisaged the probability that in the future an infinite variety of factual situations would arise, and recognizing the futility of any attempt to’ prescribe a remedy for 'every situation, it contented itself with a statement of a public policy and left the application of its policy to particular situations to the sound discretion of the district courts. Having done this with respect to the basic right to reemployment itself, we think it probable that Congress also ’ intended to do the same with respect to the incidental right to wages lost to a veteran by reason of his former employer’s unlawful refusal to rehire.
In the second place Senator Wagner in offering the amendment to § 8(e) sáid: “The amendment simply provides that in addition to entering judgment finding that the employer has violated the law and that the individual is entitled to reemployment, the court may also order that he shall receive back pay for lost wages due to the violation of the law.” [Italics supplied.] 86 Cong. Rec. 11031.
We pass the proposition that the Act imposes a categoricál obligation upon district courts to reduce the damages awarded in cases of this sort to the extent the court below reduced the petitioner’s damages in the case at bar. Our reason for so doing is that we are convinced that Congress intended at least to give district courts discretionary power to reduce damages as was done here, and this is all that has been briefed and argued and all that we need to decide in order to dispose of the instant case.
The judgment of the District Court is affirmed
It appears that while these proceedings were pending the petitioner was reeinployed by the respondent, but we are told that his reemployment was only to stop the accumulation of damages so the question of his right to restoration in employment has not become moot,
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
JOHNSON v. ZERBST, Warden. BRIDWELL v. ZERBST, Warden.
Nos. 8562, 8563.
Circuit Court of Appeals, Fifth Circuit.
Nov. 24, 1937.
Elbert P. Tuttle, of Atlanta, Ga., for appellants.
Bates Booth, Sp. Asst, to Atty. Gen., and Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger and H. T. Nichols, Asst. U. S. Attys., all of Atlanta, Ga., for appellee.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
FOSTER, Circuit Judge.
These cases present appeals from judgments dismissing petitions for writs of habeas corpus to release appellants from the Atlanta penitentiary. The evidence is identical in both cases. By agreement only one record was printed, upon which both cases were submitted. The record discloses the following facts:
Appellants were arrested in Charleston, S. C., on November 21, 1934, charged with feloniously uttering and passing four counterfeit $20 Federal Reserve notes and with knowingly and feloniously possessing 21 counterfeit Federal Reserve Bank notes, with intent to defraud. A hearing was had before a United States commissioner, at which they were represented by counsel of their own choosing. They were bound over to await the action of the United States grand jury and, being unable to give bail, were confined in a local jail. An indictment was returned against them at the next term of court, and on January 23, 1935, they were brought into court, pleaded not guilty, and were tried to a jury, with the result that a verdict of guilty was rendered. They were sentenced to be imprisoned in the Atlanta penitentiary for 4 years and 6 months. No appeal was taken from this judgment. In December, 1935, they filed petitions in the United States District Court for the Northern District of Georgia, seeking release on habeas corpus. The petitions alleged that the judgment of conviction was an absolute nullity, on the grounds that they were innocent of the charge and were denied compulsory process for obtaining witnesses in their favor and to have the assistance of counsel for their defense, in violation of the Sixth Amendment; and were therefore denied due process of law, in violation of the Fifth Amendment. The District Court appointed competent counsel to represent them on the trial of the habeas corpus cases and evidence was taken on the hearing. The District Court reached the conclusion that they had been deprived of constitutional rights as alleged, but that, as the trial court had jurisdiction and the judge was not prejudiced nor swayed by any improper influence, the judgment was not void and the errors and irregularities complained of could be corrected only on appeal. Bridwell v. Aderhold (D.C.) 13 F.Supp. 253. No appeal was taken from these judgments. However, in December, 1936, the applications for release on habeas corpus were renewed on the same grounds. The District Court again appointed competent counsel to represent appellants on the second trial before him, and they were represented by competent counsel on this appeal.
There is some conflict in the evidence appearing in the record, but the following facts may be considered as proved with reasonable certainty. When appellants were brought into the District Court in South Carolina, the indictment was read to them and they signed pleas of not guilty. They were asked by the judge if they were represented by counsel and replied “No,” and were then asked by him if they were ready for trial and replied “Yes.” They did not request the judge to appoint counsel for them, he did not do so of his own motion, and they were not represented by counsel at the trial.
Appellants are white men, and were both in the service of the United States in the Marine Corps. Bridwell had had 11 years’ continuous service and was a corporal. The term of service of Johnson is not shown. Bridwell had attended a country school until he was 15 years of age. Johnson had had fifth grade education. During the trial Bridwell assumed charge of the defense for both appellants, crpssexamined government witnesses, took the stand in his own defense, and at the close of the case addressed the jury. Johnson did not testify. There was evidence tending to show that Bridwell conducted the defense very well for a layman and showed some familiarity with legal procedure. During the trial Bridwell stated that he did not think that men of such limited knowledge as appellants.would know counterfeit money when they saw it and asked that a witness be called to establish whether the money was counterfeit. The district attorney procured a witness, who was a deputy sheriff in charge of tax collections and handled considerable money in performing his duties. He testified that the money was counterfeit and that that fact was readily discernible. Bridwell had objected to the testimony of other witnesses, but no objection was made to the introduction of this witness nor to his testimony.
Bridwell testified the attorney who represented them before the commissioner continued to represent them until some time in January and was paid $100 for his services; that he released them because they would not follow his advice to plead guilty and they had no more money to pay him; that before the trial they made efforts to secure another lawyer, naming him, but were unable to get in touch with him because they were in jail. Bridwell also testified, and this was corroborated by Johnson, that, in the presence of the judge, he asked the United States attorney if he could be represented by counsel and was told by him that in South Carolina counsel was not appointed by the court except in capital cases. He then asked if he could have witnesses subpoenaed, and he was told by the United States attorney that it was too late. The United States attorney, his assistant, and the clerk of the court, who were present at the time, denied that Bridwell made inquiry as to securing either counsel or witnesses and denied that the United States attorney made the statements attributed to him. Appellants further testified they did not know and were not advised of their right to ask for a new trial or take an appeal until after they had been removed to the penitentiary, when they were told by a fellow prisoner. With his assistance they prepared an application for appeal, but the trial judge declined to allow it on the ground that it came too late and he was without jurisdiction. There is no doubt that the time for an appeal had elapsed under the criminal appeals rules.
Appellants rely upon the cases of Downer v. Dunaway (C.C.A.) 53 F.(2d) 586, and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. In Downer v. Dunaway we reversed a judgment of the District Court dismissing an application for habeas corpus without a hearing. The defendant was a negro charged with raping a white woman. The trial was conducted immediately after the crime was alleged to have been committed and under pressure of such great public feeling against the prisoner that the militia had to be called out to protect him during the trial. While the defendant was represented by counsel until the verdict was rendered, counsel did nothing to perfect an appeal to the Supreme Court of Georgia. The fact that the accused was not represented by counsel at a crucial time was not entirely the basis of our decision. We concluded that, assuming the allegations of the petition to be true, the trial was dominated by the mob so as to deprive defendant of due process of law.
Powell v. Alabama went up on writ of certiorari to the Supreme Court of Alabama and was not decided on application for habeas corpus. In that case the defendants were also negroes charged with raping white women. The danger of lynching was imminent, and it was necessary to call out the militia to protect the prisoners during the trial, which was held immediately after they were arrested. The defendants were not represented by counsel. It was held that in the circumstances attending the trial, considering the youth, ignorance, and illiteracy of the defendants, it was the duty of the court to appoint counsel to aid them in the preparation of their defense and in the trial of the case, whether requested or not. We do not consider these cases controlling as applied to the facts in the cases at bar.
It has been repeatedly held that the writ of habeas corpus may not be substituted for a writ of error or an appeal. If the trial court had jurisdiction, it is only in extraordinary cases, where the circumstances surrounding the trial make it a sham and a pretense, that the writ will lie on the ground that the judgment is a nullity for want of due process of law, even though it be alleged the accused has been denied rights guaranteed by the Constitution. Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070. The cases at bar do not present extraordinary features. Appellants were not immature and had sufficient education to understand the charge against them. There was no undue haste in bringing them to trial, there was no popular feeling against them, and1 the trial was quiet and orderly. They had over 2 months in which to procure counsel or to seek advice from their friends. The presiding judge was not prejudiced against them.. There is no showing that there were any witnesses they desired to have summoned to give testimony in their favor. They had the right of appeal, and the reasons for their not doing so are immaterial. They did not request the trial judge to appoint counsel for them. Perhaps it would have been better if he had done so of his own motion, but we are not advised of any decision of a court of last resort, state or federal, holding that in a noncapital case he was bound to do so. In fact, a number of decisions to the contrary, which we need not review, are cited by counsel for the United States. In Powell v. Alabama the decision was that counsel should have been appointed in that case, but the court expressly refrained from deciding whether that rule should obtain in all cases.
Due process of law does not absolutely require 'that the defendant in every criminal case be represented by counsel. He may expressly or impliedly waive his right and suffer no wrong. When a defendant is without counsel, the judge usually protects his rights. It is'not suggested that in these cases the evidence was insufficient to support the conviction.
The judgments dismissing the petitions were right. They are affirmed;
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
Rose L. STEINBERG, a stockholder of Bendix Home Appliances, Inc., suing on behalf of herself and all other stockholders similarly situated and on behalf of and in the right of Bendix Home Appliances, Inc., Plaintiff-Appellant, v. Joseph D. SHARPE, Bernard E. Smith and Bendix Home Appliances, Inc., Defendants, W. J. Reuscher, Defendant-Appellee.
No. 268, Docket 22007.
United States Court of Appeals Second Circuit.
Argued June 7, 1951.
Decided June 25, 1951.
Morris J. Levy, New York City, for plaintiff-appellant.
Fulton, Walter & Halley, New York City, Harmon Duncombe, Daniel J. O’Con-nell, New York City, of counsel, for defendant-appellee.
Before CHASE, CLARK and FRANK, Circuit Judges.
PER CURIAM.
Judgment affirmed on opinion below. 95 F.Supp. 32.
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_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
CONLON v. ADAMSKI et al.
No. 6300.
United States Court of Appeals for the District of Columbia.
Argued March 6, 1935.
Decided April 15, 1935.
James B. Archer and Warren E. Miller, both of Washington, D. C., for appellant.
Leslie C. Garnett, John J. Wilson, John M. George, David Wiener, and James T. Brady, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellant James Conlon and appellee Roman Adamski on September 11, 1933, entered into a contract in writing whereby appellee employed appellant as attorney to bring a mandamus proceeding in the Supreme Court of the District of Columbia to enforce the payment of a claim alleged to be due him upon a war risk insurance policy for the sum of $8,740. According to the contract, out of this claim appellant was to be paid for his services the sum of $2,500.
A petition for mandamus was filed in the Supreme Court of the District of Columbia, and in answer thereto respondent, appellee Hines, admitted that the amount claimed was due Adamski and payment would be made in due course. Whereupon Adamski notified appellant that he would make application for the check for the full amount of the claim and take the funds and go to Europe. Conlon then filed a bill for injunctive relief and the appointment of a receiver, praying that he be decreed to have an equitable lien upon the check, draft, or award, for the settlement of his claim and for general relief. Adamski, through his attorney, moved to dismiss the bill of complaint, and from an order sustaining the motion this appeal was taken.
Appellant in his bill alleges, among other things: “That the said Frank T. Hines, Administrator of Veterans Affairs, has answered the petition for writ of mandamus and return to the rule to show cause, admitting in substance the facts contained in the petition, and stating ‘that the respondent will in due course award and pay to the petitioner the installments of insurance so found due and payable.’ Plaintiff avers that the services rendered by him as attorney in the mandamus proceedings resulted in the promised payment by the Administrator of Veterans Affairs of the $8,740.00 plus $57.50 per month for each month since March 1932 to the defendant, Adamski.”
It thus appears from the averments of the bill that the most that can be deduced from the answer of Hines is an anticipated allowance of a claim against the government, hence plaintiff’s contract for attorney’s fees amounts in effect to an assignment of a portion of a claim alleged to be pending against the government. Such an assignment is absolutely void under section 3477, Rev. Stats. (31 USCA § 203), which provides as follows: “All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share, thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgements of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgement, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same.”
The contract here in question is a futile attempt to convey or assign an interest -in a pending claim against the United States, and it complies with none of the requirements of the statute. It is neither witnessed nor acknowledged as therein required, nor does it purport to apply to a claim upon which a warrant has already been issued. But it is claimed that this statute is not applicable to the present case, and that the contract is merely one for an attorney’s fee in a proceeding to enforce the issuance of a warrant for the payment of the claim in compliance with an alleged finding already made by the Director of Insurance, Veterans’ Administration. The contract clearly amounts to an attempted assignment of a portion of an obligation due from the United States to appellee Adamski, but not yet reduced to payment by the issuance of a warrant.
Assuming, however, though by no means conceding, that section 3477, R. S., supra, is inapplicable to the present case, appellant’s contention would not be improved, since he comes in conflict with the provisions of section 551, title 38, U. S. C. (38 USCA § 551), which makes it a criminal offense under any circumstances “to solicit, contract for, charge, or receive, any fee or compensation,” in excess of 10 per centum of the amount recovered in such a proceeding.
But it is contended that by section 17 of the Economy Act of 1933, 48 Stat. 8 (38 USCA §§ 717, 718), repealing all laws granting or pertaining to yearly renewable term insurance, the prohibitive provisions of section 551 were repealed, and that such repeal continues, notwithstanding the decision of the Supreme Court in Lynch v. United States, 292 U. S. 571, 54 S. Ct. 840, 842, 78 L. Ed. 1434, wherein section 17, supra, was in part held unconstitutional; and that inasmuch as section 551 has not been re-enacted, the prohibitive provisions therein contained, limiting attorney’s fees, are repealed and no longer in force.
With this contention we cannot agree. Section 17, among other things, provides: “All public laws granting medical or hospital treatment, domiciliary care, compensation and other allowances, pension, disability allowance, or retirement pay to veterans and the dependents of veterans of the Spanish-American War, including the Boxer Rebellion and the Philippine Insurrection, and the World War, or to former members of the military or naval service for injury or disease incurred or aggravated in the line of duty in the military or naval service (except so far as they relate to persons who served prior to the Spanish-American War and to the dependents of such persons, and the retirement of officers and enlisted men of the Regular Army, Navy, Marine Corps, or Coast Guard) are hereby repealed, and all laws granting or pertaining to yearly renewable term insurance are hereby repealed.” 38 USCA § 717.
The court in its decision differentiated between those portions of the foregoing statute denominated as “public laws,” relating to benevolent purposes such as pensions, compensation allowances, hospital, and other privileges, and laws pertaining to yearly “renewable term insurance,” holding the act constitutional as to the former and unconstitutional as to the latter. Distinguishing between war risk insurance policies and mere pensions or gratuities accorded by the government, the court said: “War risk insurance, while resembling in benevolent purpose pensions, compensation allowances, hospital and other privileges accorded to former members of the Army and Navy or their dependents, differs from them fundamentally in . legal incidents. Pensions, compensation allowances, and privileges-are gratuities. They involve no agreement of parties; and the grant of them creates-no vested right. The benefits conferred by gratuities may be redistributed or withdrawn at any time in the discretion of Congress. United States v. Teller, 107 U. S. 64, 68, 2 S. Ct. 39, 27 L. Ed. 352; Frisbie v. United States, 157 U. S. 160, 166, 15 S. Ct. 586, 39 L. Ed. 657; United States v. Cook, 257 U. S. 525, 527, 42 S. Ct. 200, 66 L. Ed. 350. On the other hand, war risk policies, being contracts, are property and create vested rights. The terms o£ these contracts are to be found in. part in the policy, in part in the statutes under which they are issued and the regulations promulgated thereunder.”
The court, in holding the provisions of section 17 of the Economy Act, repealing all laws granting or pertaining to yearly renewable term insurance unconstitutional, left section 551 as it found it. The elementary rule of statutory construction is without exception that a void act cannot operate to repeal a valid existing statute, and the law remains in full force and operation as if the repeal had never been attempted. Frost v. Corporation Commission of Oklahoma et al., 278 U. S. 515, 526, 527, 49 S. Ct. 235, 73 L. Ed. 483.
The decree is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_state
|
21
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
HOBBS v. SWENSON
No. 6481.
United States Court of Appeals Fourth Circuit.
Argued Oct. 6, 1952.
Decided Oct. 8, 1952.
Joseph Hobbs, Jr., pro se.
Ambrose T. Hartman, Sp. Asst. At'ty. Gen. of Maryland, (Hall Hammond, Atty. Gen. of Maryland, on brief), for appellee.
Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal from an order denying a petition for a writ of habeas corpus. O-n January 7, 1947 appellant pleaded-guilty in a Maryland state court to a charge of robbery and was sentenced to a term of imprisonment. He contends that counsel were not appointed to advise him, that he was not allowed to present witnesses in his behalf and that he was not allowed to question the -witnesses against him. Appellant has repeatedly made application for habeas corpus to the state courts which have been denied and the Supreme Court of the United States .has denied certiorari. State ex rel. Hobbs v. Warden, Md., 70 A.2d 814, Hobbs v. Warden, Md., 80 A.2d 38, Id., 341 U.S. 936, 71 S.Ct. 851, 95 L.Ed. 1364. It appears also that prior applications have been made to both United States Judges in the District of Maryland and have been denied by them. The application from the denial of which this appeal was taken presents no- such unusual circumstances as would have warranted the District Judge in issuing a writ of habeas corpus in such situation. The application appears . to be entirely without merit; but we are without jurisdiction to consider the appeal because there is no certificate of probable cause as required by 28 U.S.C.A. § 2253. Bernard v. Brady, Warden, 4 Cir., 164 F.2d 881; Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717; Hansen v. Warden, 4 Cir., 198 F.2d 470.
Appeal dismissed.
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_source
|
J
|
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.
NATIONAL INDUSTRIAL ALCOHOL CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 4929.
Court of Appeals of District of Columbia.
Argued Nov. 14, 1929.
Decided Feb. 4, 1930.
Motion for Rehearing.
Reargument, and to Modify Judgment Denied March 1, 1930.
R. M. O’Hara, of Washington, D. C., for appellant.,
Mabel W. Willebrandt, Asst. Atty. Gen., and C. M. Charest, Sewall Key, and J. G. Remey, all 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 decision of the United States Board of Tax Appeals in a ease involving income and profits taxes for the fiscal years ending May 31, 1919, and May 31, 1920. .
Appellant company was engaged in the brewery business in New Orleans, La., from March, 1901 to November 3,1919. It adopted as a trade-name for beer “Old Heidelberg.” It spent in newspaper and souvenir advertising after March 1, 1913, the sum of $24,987.03; which was treated as ordinary expenses and deducted from gross income reported on its income tax returns.
On November 3, 1919, appellant abandoned the manufacture of beer and the use of its trade-name, and entered upon the business of manufacturing near beer. In August, 1921, appellant began the manufacture and sale of industrial alcohol, which was not made as a by-product of the near beer, hut as a separate product. In 1923 the near beer-business was discontinued.
In connection with the manufacture of' beer, appellant had two brick buildings, separated by a driveway. Each was of the same dimensions: three stories high; 50x100 feet. The walls of the' brewery building were 2 feet thick; and the walls of the cellar building were 4 feet thick, and contained cork for insulation purposes. This building was equipped with refrigeration pipes. The buildings in 1912 cost $115,348.93, and possessed a depreciated cost on May 31, 1918, including additions, of $124,119.09. The two buildings were constructed as a unit to be used in connection with the manufacture of beer. When the manufacture of beer was discontinued, following the adoption of prohibition, the brewery building and one floor of the cellar building were used in connection with the manufacture of near beer. The two upper floors of the cellar building and the vats therein, consisting of eight large steel vats and fifty wooden vats, were not used after November 3, 1919. .
This case arose as the result of the Commissioner’s disallowance of the amounts expended in advertising and souvenirs, which, were claimed by appellant as deductions on account of the abandonment of its trade-name, and for an additional amount claimed for obsolescence or loss in connection with the two floors of the cellar building.
From the affirmance of the Commissioner’s findings by the Board, this appeal was taken.
It was stated in the opinion of the Board that “petitioner claims a loss for the obsolescence of its good will, trade names and trade brands. It has heretofore been held that such items are not the subject of an obsolescence deduction within the meaning of the Act.” This is true as to good will. A claim for loss of good will as the result of the termination of appellant’s brewery business by prohibition legislation was properly refused by the Commissioner. Good will is not of that class of intangible property which can be made the basis of income tax reduction, unless it can be shown that the loss resulted from a sale of property for a depreciated value.
In Red Wing Malting Co. v. Willeuts (C. C. A.) 15 F.(2d) 626, 633, 49 A. L. R. 459, it was held that the loss of good will of a malting company as the result of prohibition cannot be a basis for deduction of income tax under the Revenue Act of 1918 (40 Stat. 1057). After an exhaustive review of the subject, the court said: “We have heretofore pointed out that good will has no existence separate and apart from an established business. With the termination of that business it is ended. While a capital asset, it is not the subject of purchase, sale, or assignment separate from the business itself. It is not an assignable asset distinct from the business. It is different in this respeet from such intangibles as patents, contracts or franchises which may be sold. When a business is disposed of its value and realized selling price may be enhanced by the existence of good will. If sold at a loss, the loss of good will is refleeted in the transaction. The claim is somewhat .novel, therefore, and rather startling, that loss of good will can be made the subject of an independent claim for a tax deduction, separate and distinct from the business of which it is an incident. * * * To hold that a claimant is entitled to segregate good will from the property and business to which it is attached as an incident, and from which it is inseparable, and permit a separate deduction for its loss, might result in a double deduction and have far-reaching consequences. If the court is to open the door to claimants for tax deductions under the statute for the loss of good will apart from the tangible property with which it is connected, the right should clearly appear from the statute. We think it does not so appear.”
On the other hand, it has been held by the Board that loss sustained from the abandonment of a trade-name is properly deductible in the year in which the abandonment 'occurs; but it held that the difficulty encountered in the present case arises from the failure of the appellant to identify the expenditures making up the cost of establishing the trade-name. Undoubtedly a very large part of the expense incurred in advertising and souvenirs since 1913 resulted in the| advancement of sales during the respective years, and as such was purely a business expense chargeable against the current income, as was done by appellant in respect of the entire amount so expended.
In the case of Richmond Hosiery Mills v. Commissioner of Internal Revenue (C. C. A.) 29 F.(2d) 262, 263, where the petitioner sought to restore to its capital account as invested capital a large amount expended in advertising a brand of hosiery under the trade name of “Wunderhose” which it had adopted and copyrighted, the court affirmed the finding of the Board to the effect that, while a substantial part of the advertising of the trade brand undoubtedly produced immediate benefits, it was unable from the showing made to segregate the sums expended as between capital and expense. On this point the court said: “No effort was made to have an expert audit the books to determine what proportion of the amount expended for advertising should be allocated respectively to expense and capital account. It is certain that some part, and probably the larger part, should be considered as an expense, and much weight is given to this conclusion by the charging of the total amount to expense initially.”
In this ease, as in that, the appellant has failed to sustain the burden of showing with reasonable certainty the amount chargeable to capital account, and, having charged the total amount to expense and made deductions accordingly, we agree with the Board that there is nothing before us upon which we can determine what amount can properly be attributed to the valué of the trade-name.
We come now to the consideration of the claim of appellant for his loss sustained through the abandoned use of the two floors of the cellar building. It appears from tibe evidence that to remove the steel vats from the two floors would require the dismantling of the cellar building, the doors being only 6 feet wide and the vats 22 feet in diameter. In support of appellant’s contention that the two abandoned floors possessed no residual or salvage value, but represented a total. loss, we think the evidence is ample. In determining this point, the nature of the building and the purpose of its construction must be taken into consideration. The building was designed for the brewery business alone, with walls 4 feet thick, insulated, and equipped with refrigerating pipes, in which was installed at the time of building the steel and wooden vats. The testimony shows that neither the two floors abandoned nor the vats on those floors had any value to appellant after November 3, 1919. The only' use made of the building subsequent to that time was the use of the first floor until 1923 for the manufacture of a cereal beverage. To establish a loss, it is not essential that the fact or amount of the loss be determined by a sale of the property. Dean, Collector, v. Hoffheimer Brothers Co. (C. C. A.) 29 F.(2d) 668. “A loss may become complete enough for deduction without the taxpayer’s establishing that there is no possibility of an' eventual recoupment. * * * The taxing act does not require the taxpayer to be an incorrigible optimist.” U. S. v. S. S. White Dental Mfg. Co., 274 U. S. 398, 47 S. Ct. 598, 600, 71 L. Ed. 1120.
It is not for the Commissioner or the Board to speculate as to the future use that may possibly be made of the property, or the value it may attain when so used, in the face of proof, as in this ease, that the entire value to appellant ceased with the outlawing of his-brewery business. We are of opinion, therefore, that appellant is entitled to deduction for the loss sustained to the extent of the value of the two floors together with the depreciated value of the vats therein contained.
The decision of the Board is affirmed as-to good will and trade-name; and reversed as to allowance for loss of building.
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_origin
|
H
|
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.
ATLANTIC PROPERTIES, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 74-1439.
United States Court of Appeals, First Circuit.
Argued May 7, 1975.
Decided Aug. 11, 1975.
David H. Halpert, Boston, Mass., with whom Gadsby & Hannah, Boston, Mass., was on brief for appellant.
Louis A. Bradbury, Atty., Tax Div., Dept. of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews and Richard Farber, Attys., Tax Div., Dept. of Justice, were on brief, for appellee.
Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
This is an appeal from a decision of the United States Tax Court, 62 T.C. No. 73 (1974). We affirm. Since that court’s opinion contains a thorough presentation of the facts and discussion of the law, we confine ourselves only to such a summary as will make the issue intelligible.
The challenged holding is that taxpayer, a Massachusetts corporation engaged in the management and rental of some twenty aging industrial buildings, is subject to the accumulated earnings tax imposed by section 531 of the Internal Revenue Code of 1954, 26 U.S.C. § 531, for the fiscal years 1965 — 1968. The corporation was organized in 1951 on a basis which can be called either fail-safe or deadlock-guaranteed: stock was issued in four equal blocs, with an 80 per cent vote of all the stock being necessary to approve any “resolution, purchase, sale, lease, contract . . . proceeding or act by the Board of Directors or by any officer.”
The property was purchased in 1951 at a cost of $300,000. During the ensuing years receipts from earnings and sales of some of the real estate placed the corporation in a highly liquid condition. For the tax years in question the ratio of current assets to liabilities varied from a low of 7.2 to 1 to 19.3 to 1 and earned surplus increased from $268,965 in 1965 to $352,354 in 1968. Very early in the life of the corporation a profound disagreement developed between the holders of 75 per cent of the stock and Dr. Wolf-son, a 25 per cent owner. The former felt that dividends should be declared, while the latter felt that the property should be repaired and improved.
As an inevitable result, meetings of the directors were often acrimonious and chaotic, salaries were authorized only in 1959 and 1960, and dividends (of $10,000) were paid in only 1964 and 1970. In 1962 an engineering firm made a general estimate of recommended repairs. These, including work on some buildings which have since been demolished, to-talled $296,000. Nothing was done in any organized way to implement the recommendations; the corporation made repairs based on urgent need.
The Tax Court held that the corporation had not submitted such an explanatory statement of its reasonable needs as to shift the burden of proof to the government, 26 U.S.C. § 534(a). The statements submitted were those of the warring blocs, not the corporation’s; they were not specific; and, the court added, even had the burden shifted, the Commissioner had demonstrated an unreasonable accumulation. This finding is not disputed on appeal.
This fact having been established, it was the taxpayer-corporation’s burden, under section 533, to prove by a preponderance of the evidence that it had not been “availed of for the purpose of avoiding the income tax with respect to its shareholders ... by permitting earnings and profits to accumulate instead of being divided or distributed.” Section 532(a). The corporation claims that it has met its burden by showing the near quarter century deadlock between Wolfson and his co-stockholders.
The Tax Court acknowledged the deadlock but held that, while it absolved the holders of 75 per cent of the stock of any tax avoidance purpose, Wolfson’s tax avoidance motive was enough to place liability on the corporation. The court found evidence of such a motive in the fact that in Wolfson’s high tax bracket during the tax years in question it would have been to his advantage to avoid additional income; in Wolfson’s having asked other directors if he could give his stock to a charitable foundation he had established — which gift would have given him the benefit of appreciated value; and in Wolfson’s lack of any definite or feasible plan for use of the accumulated earnings. Wolfson relied only on the 1962 general survey; he apparently did nothing over the years to reduce a general strategy to a practicable, staged, priority conscious plan of capital improvement in an effort to persuade the other stockholders. Cf. Oklahoma Press Publishing Co. v. United States, 437 F.2d 1275, 1279 (10th Cir. 1971). Indeed, our reading of some of the corporate minutes for 1967 indicates that the dispute over repairs had long since been elevated to a theological discussion, with no practical implications.
We cannot say that the finding as to a tax avoidance motive on the part of Wolfson was clearly erroneous. Our chief inquiry here is whether a deadlock between Wolfson and the remaining stockholders, with Wolfson so tainted, is proof by a preponderance of the evidence that the taxpayer corporation was not availed of to avoid income taxes.
Taxpayer relies heavily on Casey v. Commissioner, 267 F.2d 26 (2d Cir. 1959), which involved a deadlock between two half owners of the stock of a corporation. One wished to spend most of $103,504 of accumulated earnings on a new automatic printing machine; the other refused to allow more than $50,000 to be so spent. The court of appeals reversed a Tax Court ruling that the corporation had accumulated funds beyond its reasonable needs. First noting that the Commissioner had the burden of proving an unreasonable accumulation, it observed that the issue dividing the co-owners was the possibility of finding a machine which would serve their purpose, one being pessimistic, the other optimistic. In fact, a year later the optimistic partner, having bought out the other’s share, found an acceptable machine. In such a case, the court said, leaving the money in the treasury “does not tend to show that it would have been unreasonable for the corporation to have spent the money for the machines, or to hold the money to have it available to spend for the machines.” Id. at 31— 32. While this holding made it unnecessary to consider whether the taxpayer had proven that an unreasonable accumulation was not for a tax avoidance purpose, the court added the thought that if funds are “accumulated because of a deadlock between two equal shareholders as to whether to spend them or not, and no particular thought seems to have been given to dividends or surtaxes, the presumption of motive does not seem to fit.” Id. at 32.
The instant case differs from Casey in two important respects. First,' the unreasonableness of the accumulation being uncontested, it is the taxpayer, not the Commissioner, which has the burden of rebutting a presumption of a “purpose to avoid the income tax with respect to the shareholders”, section 538(a). Second, in Casey there was no finding, as there is here, that one of the co-owners had a tax avoidance motive. Although Casey does not compel a ruling for taxpayer here, neither does it offer affirmative help for the government. Nor is United States v. The Donruss Co., 393 U.S. 297, 89 S.Ct. 501, 21 L.Ed.2d 495 (1969), conclusive. In that case the Supreme Court held that, as a predicate for surtax liability, tax avoidance need be only one motive of a taxpayer, not the only or dominant motive. We are left with the question whether Wolfson’s intransigence, coupled with his motive to avoid taxes, should subject his long complaining fellow stockholders to accumulated earnings tax liability.
It is difficult, in a deadlock situation, to speak of a corporate purpose. By definition the corporation is frustrated from having a purpose. But the statute, section 532(a), speaks of a corporation being “availed of” for such a purpose. Were a corporation, by vote of a majority, however close the vote, to forestall dividends and thus to cause earnings to accumulate unreasonably, there is no doubt that protesting stockholders and directors would be held liable. The law would not give weight to their personal preference for dividends. In the case at bar the participants, deliberately if not with the wisdom of hindsight, created a corporation in which a holder of 25 per cent of the stock could effectively exercise majority power in vetoing virtually any affirmative act or resolution. By his exercise of such a power, such a minority holder serves his own tax avoidance purposes and imposes on his colleagues an un-willed avoidance of income tax. We see no alternative to imposing liability on all the stockholders other than that of granting immunity to all stockholders of a closely held corporation whenever one of them, with power of veto, chooses to use it for tax avoidance purposes. This, it seems to us, creates a new and unnecessary tax loophole and puts the burden on the general citizenry, who, after all, had nothing to do with creating the vehicle.
Affirmed.
. On appeal taxpayer for the first time presents a chart to show that had each year’s earned accumulations been distributed to ■ Wolfson, he could, by taking advantage of available unused ordinary losses, have received dividends in 1965 and 1966 at only a nominal tax cost. This is ingenious retrospective advocacy but, even if we were to take note of it, is underinclusive as to years and as to the reasons relied on by the Tax Court.
. We note but do not rely upon a similar possible motivation, not mentioned by the Tax Court. Wolfson testified that he had begun his practice in 1922. By the years 1965-1968, he would have been at least 67 or 68 years old. Solely in a tax avoidance sense, time was on Wolfson’s side. Simply by waiting, he could eventually assure the transfer of appreciated value, without income tax diminution, to his estate.
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
|
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 "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Robert H. NORTHINGTON, Trustee and the First National Bank of Midland, Texas, Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees.
No. 72-2702.
United States Court of Appeals, Fifth Circuit.
March 26, 1973.
Reagan H. Legg, Midland, Tex., for Northington.
Wm. Monroe Kerr, Midland, Tex., for First Nat’l Bank.
Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Gary R. Allen, Park T. Zimmerman, Gray Allen, Attys., Tax Div., Dept, of Justice, Washington, D. C., William S. Sessions, U. S. Atty., San Antonio, Tex., for defendants-appellees.
Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge.
BELL, Circuit Judge:
Section 6324(a)(1) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6324(a)(1), imposes a pre-assessment tax lien on the gross estate of any decedent whose property is subject to estate tax. The lien attaches at death. This appeal presents questions concerning the circumstances in which property, otherwise subject to the lien of § 6324(a)(1), may be divested of the lien prior to the assessment and payment of estate tax.
The decedent died testate on October 31, 1964. His will was admitted to probate in Midland County, Texas, and letters testamentary were issued to his son, who was named in the will as the independent executor of the estate, pursuant to § 145 of the Texas Probate Code. 17A Vernon’s Texas Civil Stat.Ann. § 145.
Under the Texas system of independent administration an executor may proceed with the administration of an estate, without seeking court approval of specific dispositions, once the will has been probated and the inventory, appraisement, and list of claims of the estate have been approved by the court. 17A Vernon’s Texas Civil Stat.Ann. § 145. In the present case the executor proceeded in this fashion. On August 24, 1965, he sold, to himself, a building which was formerly owned by his father and now was in his father’s gross estate. The sale price was $50,000.00. To finance the purchase, he borrowed $50,000.00 from the First Savings and Loan Association of Midland. This loan was secured by his personal note and by a deed of trust. As executor, he received a net consideration from the closing agent of $49,100.92 and this was deposited in the bank account of the decedent’s estate on August 26,1965.
The executor filed a federal estate tax return on January 24, 1966. The return reflected a tax liability of $392,347.81. The executor elected to discharge this liability in ten annual installments pursuant to § 6166 of the Code. After receiving partial payment, the Service assessed a small deficiency on May 19, 1967. Additional partial payments followed. At the time this action was brought, $205,445.48 remained unpaid, and payment was due.
On July 16, 1971, the son conveyed the property which he had purchased from the estate to Robert H. Northington, trustee. The consideration given by Northington was, in part, the assumption by him of the note and deed of trust which the son had given to the First Savings and Loan Association. The note and deed of trust were then renewed and purchased by the First National Bank of Midland.
At that point the Service took steps to insure the payment of the unpaid tax. On September 21, 1971, a revenue officer served Northington with notice of a levy on the property which Northington, as stated, had purchased from the son. Northington and the First National Bank of Midland then brought this action to enjoin the levy.
Because the property did not belong to the estate at the time the estate tax return was filed, the government could not rely with assurance on the general tax lien that attached against property in the estate at the time the executor failed to pay the tax, after it was assessed and due. See 26 U.S.C.A. § 6321. Thus the suit to enjoin the levy presented the question: Was the contested property subject to the special estate tax lien, which under § 6324(a)(1) attached to all property in the gross estate at the time of the decedent's death? The district court held that the special estate tax lien did attach to the property levied upon here; that the property has not been divested of the lien; and that the lien continues in force. We agree.
The appellants contend that the lien has been divested by operation of law. They rely on the express language of § 6324(a)(1):
Unless the estate tax imposed by chapter 11 is sooner paid in full, or becomes unenforceable by reason of lapse of time, it shall be a lien upon the gross estate of the decedent for 10 years from the date of death, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien. (Emphasis added)
The appellants argue that their property was divested of the lien because it was used by the executor for the payment of “charges against the estate”, within the meaning of § 6324(a) (1).
We must reject this argument. The district court held that the property had not been divested of the lien because it found that the proceeds of the sale of the property were not used to discharge any obligation of the estate. We cannot say, on our reading of the record, that this finding was clearly erroneous.
The proceeds of the sale were paid to an account maintained for the benefit of the estate. Two days later the executor drew a check upon that account in the amount of $50,000.00. This amount was equivalent to the amount of the proceeds of the sale. The check was paid to the Jones Exploration Company, an individual proprietorship operated by the executor, but formerly a partnership operated by decedent and his son, the executor.
The estate was under no net obligation to the Jones Exploration Company, and the payment to the Company was not itself in satisfaction of an obligation of the estate. The fact was that the estate was indebted to Jones Exploration Company but, on the other hand, Jones Exploration owed a larger amount to the estate. But the appellants contend, nevertheless, that the company was simply a conduit through which other debts and obligations of the estate were ultimately discharged. They contend that all of the $50,000.00 was in fact used by the company for that purpose. This may well have been true but the record does not so reflect. The showing they made in this regard in the district court fell short of the careful tracing which is necessary to persuade a court that the proceeds of a sale of estate property were actually used to satisfy the obligations of an estate. Cf. United States v. Security-First National Bank, 30 F.Supp. 113 (S.D.Cal., 1939), appeal dismissed, 113 F.2d 491 (9th Cir., 1940). The sole justification for divestment of a tax lien under § -6324(a)(1) is the purpose for which the divested property is used; namely, the payment of the charges against the estate and the expenses of administration. The appellants have not shown that this justification is present in this case.
Affirmed.
. Because we decide the case on this ground, we find it unnecessary to determine (1) whether the obligations which were allegedly satisfied by the proceeds of the sale were in themselves “charges against the estate” within the meaning of § 6324 (a)(1), or (2) whether the obligations which were allegedly satisfied by the proceeds of the sale were, in the context of the Texas system of independent administration, “allowed by any court having jurisdiction thereof” within the meaning of § 6324(a)(1).
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_counsel2
|
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.
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
TEXAS RURAL LEGAL AID, INC., et al. v. LEGAL SERVICES CORPORATION, Appellant.
No. 90-7109.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 22, 1991.
Decided Aug. 2, 1991.
Charles J. Cooper, with whom Michael A. Carvin was on the brief, Washington, D.C., for appellant.
Paul Nielsen, with whom Richard J. Oparil, Alan W. Houseman, and Linda E. Perle were on the brief, Washington, D.C., for appellees.
Before MIKVA, Chief Judge, and D.H. GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
MIKVA, Chief Judge:
Three legal services organizations funded by the national Legal Services Corporation (“LSC”) brought suit in district court to enjoin the enforcement of a regulation promulgated by LSC that prohibits recipient programs from engaging in redistricting litigation or related activities. See 45 C.F.R. Part 1632 (1990). The district court ruled in favor of the local organizations and granted the injunction, holding that LSC lacked statutory authority to promulgate the regulation because caseload selection and priority decisions are committed by statute to the discretion of local program recipients. See Texas Rural Legal Aid, Inc. v. Legal Services Corp., 740 F.Supp. 880 (D.D.C.1990). We reverse the district court and uphold LSC's interpretation of its statutory authority to issue regulations of this kind. We reject LSC’s argument, however, that the district court should be directed to dismiss appellees’ claim that LSC acted arbitrarily and capriciously in promulgating the redistricting regulation or, alternatively, that this court should decide the claim on its merits. The district court, because of its resolution of the statutory question, did not reach this claim, and we believe it should have the opportunity to do so on remand. Finally, we also decline to reach appellees’ First Amendment challenge (also not reached by the district court) to one aspect of the regulation.
I. Background
LSC was created by the Legal Services Corporation Act of 1974 (“LSCA” or “the Act”), Pub.L. No. 93-355, 88 Stat. 378 (codified as amended at 42 U.S.C. §§ 2996-2996Z (1988)), “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” LSCA § 1003(a), 42 U.S.C. § 2996b(a). LSC makes and administers grants to approximately 325 local organizations that provide free legal assistance to eligible clients or perform other functions supporting the provision of legal services to clients. See LSCA § 1006(a), 42 U.S.C. § 2996e(a). The program recipients that directly assist clients (known as “basic field programs”) employ more than 4,000 attorneys and serve more than 1.3 million clients annually. Their collective service areas cover the entire United States.
The Act requires basic field programs to assess the legal needs of the eligible client populations in their respective service areas and to establish caseload priorities responsive to those needs. See LSCA § 1007(a)(2)(C), 42 U.S.C. § 2996f(a)(2)(C). Although specific priorities vary, the basic field programs commit the bulk of their resources to providing legal assistance in areas such as housing, family law, entitlement programs, and consumer matters. See 54 Fed.Reg. 10,569 (1989).
The basic field programs traditionally have established their priorities without interference from LSC concerning the substantive nature of the matters they may handle, although the Act itself contains a number of limitations. These include bars on the use of funds granted under the Act for, inter alia, criminal defense work, political activity, labor organizing, strikes, abortion and school desegregation litigation, and lobbying. See LSCA § 1007, 42 U.S.C. § 2996f. Recipient programs are also prohibited from using private funds for any activity proscribed by the Act. See LSCA § 1010(c), 42 U.S.C. § 2996i(c). Recipient staff attorneys are barred from engaging in political activities, see LSCA §§ 1006(e), 1007(a)(6), 42 U.S.C. §§ 2996e(e), 2996f(a)(6), and generally may not engage in the outside practice of law. See LSCA § 1007(a)(4), 42 U.S.C. § 2996f(a)(4). LSC appropriations acts in recent years have added further limitations on the use of LSC funds. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub.L. No. 101-515, § 607, 104 Stat. 2101, 2148-53 (1990) (detailing restrictions currently in effect).
In March 1989, LSC published a proposed regulation prohibiting “any redistricting activity” by program recipients. 54 Fed.Reg. 10,569 (1989). After receiving and considering written comments, LSC revised the rule in certain respects and published it in final form on August 3, 1989, to be effective September 5, 1989. See 54 Fed.Reg. 31,954 (1989). The regulation defines “redistricting” as “any effort, directly or indirectly, to participate in the revision or reapportionment of a legislative, judicial, or elective district at any level of government, including influencing the timing or manner of the taking of a census.” 45 C.F.R. § 1632.2. Program recipients are prohibited under the regulation from “advocating or opposing any plan, proposal, or litigation intended to or having the effect of altering any redistricting at any level of government.” 45 C.F.R. § 1632.3. As revised prior to being finalized, the regulation makes clear that (1) litigation under the Voting Rights Act is permissible so long as it does not involve redistricting; (2) the prohibition does not prevent recipients from using public or tribal funds for the purposes for which they were provided, including redistricting (this tracks a general exception in section 1010(c) of the Act, 42 U.S.C. § 2996i(c), regarding use of such funds for otherwise prohibited activities); (3) employees of recipients may be involved in redistricting activities so long as their involvement does not make use of program resources and is done on their own time, does not involve identification with the program, and is not done in the context of legal advice and representation; and (4) the regulation does not prohibit activities permitted by 45 C.F.R. Part 1604, governing the outside practice of law by program attorneys. See 45 C.F.R. § 1632.4.
LSC’s stated reason for promulgating the regulation was that redistrieting activities “are not related to the delivery of basic day-to-day legal services to the poor and are intertwined with impermissible political activity.” 54 Fed.Reg. at 10,569. LSC also argued that alternative sources of legal assistance typically are available to handle redistricting matters and that, because redistricting cases usually generate attorneys’ fees, permitting recipients to work on such cases places them in competition with members of the private bar. See id.
Appellees, three basic field programs funded by LSC, filed suit in district court alleging that LSC lacked statutory authority to issue the regulation, that LSC acted arbitrarily and capriciously in promulgating the regulation, and that the regulation violates the First Amendment. The district court ruled on behalf of appellees on the basis of their statutory claim and therefore did not reach the other issues raised. The court relied primarily on section 1007(a)(2)(C) of the Act, as amended, 42 U.S.C. § 2996f(a)(2)(C), which provides that LSC shall “insure that... recipients, consistent with goals established by the Corporation, adopt procedures for determining and implementing priorities for the provision of [legal] assistance....” According to the district court, the language and legislative history of this provision demonstrate that “Congress intended that recipients be permitted to select their cases free of LSC control and subject only to congressional prohibitions.” Texas Rural Legal Aid, 740 F.Supp. at 884. The Act authorizes LSC to play only a “limited administrative role,” the court continued, and LSC’s contrary position “distort[s] the text of the LSC Act into a grant of almost unlimited policy control of the entire program.” Id. at 885. Accordingly, the court entered summary judgment in favor of ap-pellees and enjoined enforcement of the regulation.
II. Analysis
A. Chevron's Applicability to LSC Rule-making
LSC is a federally-chartered nonprofit corporation of the District of Columbia. See LSCA § 1003, 42 U.S.C. § 2996b. Under the Act, LSC is not deemed an agency, department, or instrumentality of the federal government, nor are its directors or employees deemed to be officers or employees of the United States. See LSCA §§ 1005(e), 1004(c), 42 U.S.C. §§ 2996d(e), 2996c(c). There appear to be no federal court decisions addressing the applicability of the deference principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to a federally-chartered corporation of this sort. Both parties assume that Chevron applies to interpretations of the Act by LSC and that deference therefore must be accorded to any reasonable interpretation it advances of ambiguous statutory provisions. The district court did not address the issue, although the court’s opinion suggests that no deference is owed to LSC’s position because it clearly conflicts with the Act and its legislative history.
We conclude that the basic principles of Chevron apply to the statutory scheme created by the Act and the role contemplated for LSC under it. Congress has “entrusted” LSC with the duty to “administer” the Act, see Chevron, 467 U.S. at 844, 104 S.Ct. at 2782, and (as discussed more fully below) has delegated to LSC the authority to “ 'fill any gap left... by Congress.’ ” Id. at 848, 104 S.Ct. at 2782 (quoting Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974)). LSC, although not subject to the provisions of the Administrative Procedure Act (“APA”), is required to engage in notice-and-comment rulemaking under the provisions of its own Act, see LSCA § 1008, 42 U.S.C. § 2996g, indicating that Congress intended that it be treated for these purposes like an agency of the government. Moreover, Congress’s decision to create LSC as an independent corporation reflected a conscious effort to ensure its freedom from political interference. See H.R.Rep. No. 247, 93d Cong., 1st Sess. 1-2 (1973), reprinted in 1974 U.S.Code Cong. & Admin.News 3872, 3873-74; S.Rep. No. 495, 93d Cong., 1st Sess. 6 (1973). This underlying purpose further buttresses the conclusion that LSC was intended to have the full measure of interpretive authority under the Act contemplated by Chevron.
Although they do not dispute Chevron’s applicability, appellees do argue that less deference should be accorded LSC’s construction of the Act here because the redistricting regulation represents a reversal of LSC policy. Appellees cite for this proposition INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), where the Supreme Court stated that “[a]n agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” Id. at 446 n. 30, 107 S.Ct. at 1221 n. 30 (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (1981)). Appellees then point to a 1978 LSC regulation stating that “[t]he specific method for setting and reporting [caseload] priorities, as well as the priorities themselves, remain a matter for decision by the recipients.” 43 Fed.Reg. 51,789 (1978).
LSC does not dispute, however, that the basic field programs have authority to establish caseload priorities in accordance with local needs, arguing rather that the field programs do not possess exclusive authority to set priorities, particularly with respect to those classes of cases that LSC determines do not meet the national goals established by the Act. The regulatory statement cited by appellees simply does not address LSC’s view of its statutory authority to set priorities; it establishes only that, at that time, LSC’s policy was to allow basic field programs to set their own priorities without interference. This may demonstrate that the redistricting regulation was a “reversal of [LSC’s] former views as to the proper course” of conduct and that LSC therefore may be required to supply “a reasoned analysis for the change” in order to avoid the charge that its action was arbitrary or capricious. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1983). These considerations simply are not relevant, however, to the Chevron issue raised here concerning the scope of LSC’s statutory authority.
LSC's interpretations of the Act therefore must be upheld unless “Congress has directly spoken to the precise question at issue” and has resolved it against LSC, or unless the regulation cannot be termed a “permissible construction” of the Act or is arbitrary or capricious. See Chevron, 467 U.S. at 842-44, 104 S.Ct. at 2781-83.
B. LSC’s Statutory Authority to Promulgate the Regulation
Appellees argue, and the district court agreed, that the Act contains no affirmative authority for LSC to promulgate the redistricting regulation and that certain provisions of the Act conflict with it. They further argue that the legislative history of the Act and its amendments indicates that Congress intended basic field programs to have exclusive authority to set caseload priorities. LSC challenges all of these assertions, contending that the Act provides more than ample support for its authority to issue the redistricting regulation and that the regulation is fully consistent with all provisions of the Act and with the legislative history. We conclude that the Act clearly grants both general and specific rulemaking powers to LSC and that, although specific provisions of the Act are somewhat ambiguous concerning limitations on those powers, LSC’s interpretations of those provisions are permissible under Chevron.
1. LSC’s Rulemaking Authority Under the Act
Appellees contend that the Act does not grant general rulemaking authority to LSC, but rather permits LSC to promulgate regulations only for certain enumerated purposes, none of which provides authority for the redistricting regulation. We agree with LSC that the Act clearly does grant it general rulemaking authority and that, regardless, it possessed ample authority under the Act’s more specific grants of rulemaking authority to promulgate the redistricting regulation.
Initially, LSC notes that, as the Supreme Court has stated, “[t]he power of an administrative agency to administer a congres-sionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). Further, under Chevron, statutory silence or ambiguity on a particular question means that “a court may assume that Congress implicitly delegated the interpretive function to the agency....” Public Citizen v. FTC, 869 F.2d 1541, 1553 (D.C.Cir.1989). Although LSC is not deemed an agency of the federal government, it is charged with administering the Act, and its authority under the Act is phrased in expansive rather than restrictive terms. LSC is authorized, among other things, to “provide financial assistance to qualified programs,” LSCA § 1006(a)(1)(A), 42 U.S.C. § 2996e(a)(l)(A), to “make... grants and contracts as are necessary to carry out the purposes and provisions” of the Act, LSCA § 1006(a)(1)(B), 42 U.S.C. § 2996e(a)(l)(B), and to “insure that grants and contracts are made so as to provide the most economical and effective delivery of legal assistance to persons in both urban and rural areas.” LSCA § 1007(a)(3), 42 U.S.C. § 2996f(a)(3).
LSC emphasizes in particular the breadth of authority conferred by the last of these provisions, noting that courts have read this language, and similar language in other statutes, to confer broad discretionary powers. See, e.g., Spokane County Legal Services, Inc. v. Legal Services Corp., 614 F.2d 662, 669 (9th Cir.1980) (application of Act’s “economical and effective delivery” provision “necessarily ‘requires the use of informed discretion’ by LSC”) (quoting SEC v. Chenery Corp., 332 U.S. 194, 208, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995 (1947)); AFL-CIO v. Kahn, 618 F.2d 784, 788-92 (D.C.Cir.) (words “economy” and “efficiency” are “not narrow terms” and, when used in federal procurement statute, supported authority to deny government contracts to companies that failed to comply with voluntary wage and price standards), cert. denied, 443 U.S. 915, 99 S.Ct. 3107, 61 L.Ed.2d 879 (1979). We agree that this provision gives LSC substantial power to regulate the “delivery of legal assistance” by program recipients and supports the contention that LSC possesses general rule-making authority under the Act. Appel-lees argue that this provision should be disregarded because LSC did not rely on it in issuing the regulation, but the record clearly shows that LSC did cite section 1007(a)(3) as one of the provisions supporting its authority to promulgate the regulation. See 54 Fed.Reg. at 31,959.
Other provisions of the Act provide further support for LSC’s authority to issue the redistricting regulation. First, the Act grants LSC the “powers conferred upon a nonprofit corporation by the District of Columbia Nonprofit Corporation Act....” LSCA § 1006(a), 42 U.S.C. § 2996e(a). A private corporation, certainly, has the power to set the terms of grants it makes to other entities; equally important is the fact that, as explained earlier, Congress elected this organizational form for LSC in order to ensure its independence. This strongly implies that Congress intended to give LSC considerable discretion in implementing the Act. Appellees stress in response that section 1006(a) gives LSC the powers of a D.C. nonprofit corporation only “[t]o the extent consistent with the provisions” of the Act, but that objection implicates the separate question (addressed below) of whether any specific provisions of the Act prohibit LSC from exercising its power in the manner it has here; it does not imply that LSC has anything less than the general interpretive and rulemaking authority that normally inheres in agencies or other entities charged with administering a statute.
Second, the Act charges LSC with the duty to ensure that the legal services program remains free of partisan political influence and involvement. See LSCA §§ 1006(b)(5), 1007(a)(6), 42 U.S.C. §§ 2996e(b)(5), 2996f(a)(6); cf LSCA §§ 1001(5), 1006(e), 42 U.S.C. §§ 2996(5), 2996e(e). As LSC maintains, redistricting almost inevitably implicates partisan political concerns. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 753, 93 S.Ct. 2321, 2331, 37 L.Ed.2d 298 (1973) (“[politics and political considerations are inseparable from districting and apportionment”). LSC promulgated the redistricting regulation because it believed that its statutory mandate in this respect would best be implemented by “remov[ing] even the implication of impropriety from a program whose very success was determined to be dependent upon its freedom from political influence.” Smith v. Ehrlich, 430 F.Supp. 818, 823 (D.D.C.1976) (three-judge district court) (rejecting First Amendment challenge to statutory prohibition of political activities by staff attorneys of LSC recipient programs). Particularly in light of Congress’s own decision to bar legal services litigation on hotly contested issues such as school desegregation and abortion, see LSCA § 1007(b), 42 U.S.C. § 2996f(b), LSC’s decision to enact a similar ban on redistricting litigation appears consistent with one of the fundamental purposes underlying the Act.
No different conclusion is compelled by the exceptions in subparts (B) and (C) of section 1007(a)(6) for “legal advice and representation” in connection with the activities prohibited therein. Those subparts generally prohibit attorneys of recipient programs from providing transportation to the polls or “similar assistance in connection with an election” and from assisting in voter registration activities. (Significantly, subpart (A) of section 1007(a)(6), which prohibits “any political activity” by attorneys of recipient programs, does not contain an exception for legal advice and representation.) We agree with LSC that redistricting activities are not encompassed within the rather narrow scope of these election-related provisions, and we therefore reject appellees’ conclusion that the exceptions for legal advice and representation contained in them constitute affirmative statutory authorization for redistricting activity.
Considering all of these provisions together, we conclude that the Act invests general rulemaking authority in LSC and that the Act’s more specific grants of authority buttress LSC’s power to promulgate the redistricting regulation.
2. The Regulation’s Consistency with Other Provisions of the Act
Appellees argue that even if LSC has the rulemaking powers outlined above, the redistricting regulation conflicts with certain other provisions contained in the Act. We consider each of these provisions in turn.
a. Section 1007(a)(2)(C). The first provision cited by appellees, and the provision chiefly relied upon by the district court in its decision, states that LSC shall “insure that... recipients, consistent with goals established by the Corporation, adopt procedures for determining and implementing priorities for the provision of [legal] assistance....” LSCA § 1007(a)(2)(C), 42 U.S.C. § 2996f(a)(2)(C). The district court held that this provision “authorizes LSC to set goals relating to the procedures by which LSC recipients set priorities, not to itself determine substantive case priorities.” Texas Rural Legal Aid, 740 F.Supp. at 886. The district court buttressed its interpretation by contrasting the current version of this provision with the language originally enacted in 1974 and by consulting the legislative history of the 1977 amendments to the Act, which changed the provision to its present form. See id. at 883-84.
Although we do not agree with LSC’s contrary position that section 1007(a)(2)(C) actually provides clear support for its authority to set substantive priorities, we do believe that the provision is ambiguous and that we should defer to LSC’s interpretation. First, the language of the provision simply does not clearly support either ap-pellees’ or LSC’s interpretation. Although section 1007(a)(2)(C) states that the procedures adopted by program recipients for setting priorities must be “consistent with goals established by” LSC, the placement of the latter phrase does not necessarily imply that only the procedures — and not also the priorities set by those procedures — must be consistent with LSC regulations. Section 1007(a)(2)(C) can just as easily be read as subordinating both the procedures and priorities adopted by local programs to the national goals established by LSC, or as simply not addressing LSC’s authority concerning priorities at all. In the latter instance, the provision would do nothing to constrain LSC’s general rule-making powers; in the former, it would supplement and support those powers.
Second, the changes effected in section 1007(a)(2)(C) by the 1977 amendments to the Act do not compel the conclusion that Congress intended to place exclusive authority over caseload priorities in the hands of the local programs. As originally enacted, section 1007(a)(2)(C) directed LSC to “establish priorities to insure that persons least able to afford legal assistance are given preference in the furnishing of such assistance.” The House report accompanying the 1977 amendments indicates that the new version of section 1007(a)(2)(C) reflected Congress’s determination that establishing poverty as the sole criterion for allocating program resources risked leaving unaddressed certain legal problems of importance to the poor. See H.R.Rep. No. 310, 95th Cong., 1st Sess. 10-11, reprinted in 1977 U.S. Code Cong. & AdminNews 4503, 4512. The House report then stated:
Reference to goals that may be established by the Corporation permits the Corporation to set as goals the provision of legal assistance in the most effective manner, or so as to have the greatest effect on problems of poor people, or other similar goals. The reference is not intended to detract from the rightful role of local programs, in consultation with local client communities, to set priorities concerning the substantive law matters to which scarce program resources are to be allocated. This does not require the Corporation to establish goals, but authorizes the Corporation to do so if it finds appropriate.
Id. at 4513; cf. S.Rep. No. 172, 95th Cong., 1st Sess. 35 (1977). Although this passage clearly contemplates that local programs will have a major, and perhaps even preeminent, role in setting program priorities, it does not necessarily imply that LSC should exercise no control at all over those priorities. The reference to the “rightful role” of local programs in setting priorities, in conjunction with the statement that LSC may set goals “so as to have the greatest effect on problems of poor people,” arguably implies that LSC and local programs are both to play roles in establishing priorities. LSC interprets the “rightful role” of local programs to be the assessment of the peculiar local needs of client populations, while LSC’s own role is to provide caseload guidance based on considerations that it deems are not dependent on local conditions. In the instant case, LSC determined that redistricting activities raised concerns of general import analogous to those that motivated Congress to prohibit certain other categories of litigation, and it therefore acted to prohibit local programs from engaging in those activities. We believe that a reasonable construction of section 1007(a)(2)(C) and its legislative history supports LSC’s authority to make such assessments. Under this interpretation of the Act, the roles of the local programs and LSC are complementary, with each exercising authority within the realm of its special expertise. There is thus no cause for asserting, as the district court did, that LSC’s position would make the local boards “mere puppets” of LSC. See Texas Rural Legal Aid, 740 F.Supp. at 884.
b. Statutory Prohibitions on Litigation. Appellees argue next that the redistricting regulation is inconsistent with the specific substantive prohibitions included in the Act by Congress {e.g., the bans on school desegregation and abortion litigation) because Congress intended those prohibitions to be exclusive. The only support appellees provide for this assertion, however, is the general evidence they adduce that Congress meant to deprive LSC of any authority to control the caseload priorities established by basic field programs. Having rejected appellees’ argument on that point, we reject their argument on this one as well.
Although they do not explicitly cite it, appellees appear to rely on the canon of statutory interpretation, expressio unius est exelusio alterius (“the expression of one is the exclusion of others”). Whatever its usefulness in other circumstances, however, this canon has little force in the administrative setting. See, e.g., Cheney Railroad Co. v. ICC, 902 F.2d 66, 68-69 (D.C.Cir.), cert. denied, — U.S. -, 111 S.Ct. 519, 112 L.Ed.2d 530 (1990); Clinchfield Coal Co. v. Federal Mine Safety & Health Comm’n, 895 F.2d 773, 779 (D.C.Cir.), cert. denied, — U.S. -, 111 S.Ct. 137, 112 L.Ed.2d 104 (1990). Under Chevron, we normally withhold deference from an agency’s interpretation of a statute only when Congress has “directly spoken to the precise question at issue,” 467 U.S. at 842, 104 S.Ct. at 2781, and the expressio canon is simply too thin a reed to support the conclusion that Congress has clearly resolved this issue. See Cheney Railroad Co., 902 F.2d at 69. Having decided that, we must defer to LSC’s refusal to read the Act in the manner suggested by the expres-sio canon if its interpretation is otherwise reasonable. See id.; Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285, 1292 (D.C.Cir.) {“Chevron implicitly precludes courts picking and choosing among various canons of statutory construction to reject reasonable agency interpretations of ambiguous statutes”) (emphasis deleted), aff'd without opinion by an equally divided Court, 493 U.S. 38, 110 S.Ct. 398, 107 L.Ed.2d 277 (1989).
In any event, an equally pertinent canon of interpretation states that a congressional decision to prohibit certain activities does not imply an intent to disable the relevant administrative body from taking similar action with respect to activities that pose a similar danger. See, e.g., Mourning v. Family Publications Service, Inc., 411 U.S. 356, 372-73, 93 S.Ct. 1652, 1662-63, 36 L.Ed.2d 318 (1973); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 500 (8th Cir.), cert. denied, 479 U.S. 915, 107 S.Ct. 317, 93 L.Ed.2d 290 (1986). The ex-pressio maxim is inappropriate in the administrative context, these cases suggest, because its application “would undermine the flexibility sought in vesting broad rule-making authority in an administrative agency.” Mourning, 411 U.S. at 372, 93 S.Ct. at 1662. Indeed, a congressional prohibition of particular conduct may actually support the view that the administrative entity can exercise its authority to eliminate a similar danger. Id. at 372-73, 93 S.Ct. at 1662-63. Here, LSC determined that the dangers of entanglement in controversial local issues such as school desegregation and abortion were presented as well by redistricting litigation and, accordingly, justified imposing a similar ban on program recipients. Particularly in light of the Act’s mandate to LSC to ensure that the legal services program remain free from partisan political involvement, we cannot conclude that LSC’s position is based on an unreasonable interpretation of the Act. See Herman & MacLean v. Huddleston, 459 U.S. 375, 387, 103 S.Ct. 683, 689-90, 74 L.Ed.2d 548 (1983) {expressio maxim and other canons of interpretation “ ‘long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose’ ”) (quoting SEC v. C.M. Joiner Leasing Corp.; 320 U.S. 344, 350-51, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943)).
c. Section 1010(c). Appellees' next argument is more narrowly drawn but also relies implicitly on the expressio maxim. They claim that the redistricting regulation’s prohibition on the use of private funds by program recipients for redistricting activities conflicts with section 1010(c) of the Act, 42 U.S.C. § 2996i(c), which provides that private funds received for the provision of legal assistance “shall not be expended by recipients for any purpose prohibited by this subchapter....” This provision was intended to prevent local programs from “contravenpng] the other restrictions in the act by attributing them to the non-Federal share of funds contributed to such programs.” 120 Cong.Rec. 24,026 (1974) (summary of Act by Senator Nelson). Appellees read into section 1010(c) a congressional intent to bar use of private funds only for purposes prohibited by the Act itself (as they try to read a similar exclusivity into Congress’s enactment of those prohibitions), but the only support they provide for this assertion, other than the language of the provision and similar language in the legislative history, is the fact that Congress has on several occasions overridden by statute other LSC regulations that limited the use of private funds by program recipients. See, e.g., Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub.L. No. 101-515, § 607, 104 Stat. 2101, 2152 (1990) (use of private funds for legislative representation); id,., 104 Stat. at 2153 (use of private funds for financially ineligible clients).
Reliance on subsequent legislative history of this sort, however, is notoriously suspect and “ ‘form[s] a hazardous basis for inferring the intent of an earlier [Congress].’ ” Jefferson County Pharmaceutical Ass’n v. Abbott Laboratories, 460 U.S. 150, 165 n. 27, 103 S.Ct. 1011, 1021 n. 27, 74 L.Ed.2d 882 (1983) (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331-32, 4 L.Ed.2d 334 (1960)). In any event, consulting these later actions by Congress does not persuade us that they support appellees’ position. Notably, Congress did not respond to LSC’s prior regulations on the use of private funds by enacting a general provision barring LSC from imposing limitations in excess of those provided by the Act, nor has Congress taken any action with respect to the specific limitation contained in the redistricting regulation. Appellees direct our attention to a statement by Senator Rud-man that expresses general dissatisfaction with LSC’s “misguided view of its authority to extend the coverage of regulations it promulgates to private funds.” 135 Cong. Rec. S7233 (daily ed. June 23, 1989). Yet Senator Rudman also seemed to recognize that LSC does have some authority to regulate the use of private funds by program recipients, stating only that LSC had “overextend[ed]” that authority. Id. The kind of regulation at issue here, which is more closely akin to the prohibitions specifically enumerated by Congress itself in the Act than were the regulations overridden by Congress, would seem to further rather than impede the purposes underlying the Act and to justify the exercise of LSC’s authority to limit the use of private funds. At the very least, we cannot say that LSC’s interpretation of its authority in this respect is an impermissible construction of the Act. If Congress disagrees with LSC’s action, it remains free to override this part of the redistricting regulation, as it has done in
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_state
|
53
|
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".
HERMANOS et al. v. MATOS.
No. 3029.
Circuit Court of Appeals, First Circuit.
Feb. 12, 1936.
BINGHAM, Circuit Judge, dissenting.
Martin Travieso, of San Juan, Puerto Rico, for appellants.
Heriberto Torres-Sola, of San Juan, Puerto Rico (Ralph Bosch, of New York City, of counsel), for appellee.
Before BINGHAM and MORTON, Circuit Judges, and MORRIS, District Judge.
MORTON, Circuit Judge.
This is an appeal by the plaintiffs from a judgment of the Supreme Court of Puerto Rico dismissing their complaint. The facts are not now in dispute, the findings of the court of first instance, the District Court of San Juan, having been confirmed by the Supreme Court. The principal question is whether the plaintiffs’ suit is barred by the short statute of limitations applying to redhibitory actions.
The plaintiffs contracted to buy from the defendant a herd of 122 dairy cattle for $18,000; the cattle were delivered, and the full agreed consideration was paid for them in cash and property. Within a short time it developed that many of the cattle were infected with tuberculosis, a contagious disease. Seventy-two of them died or had to be killed for that reason. The exact number infected at the time of delivery is not stated. In the opinion of the Supreme Court it is said: “From the evidence, that court (the District Court) had the right to find that a great number of the cows sold were affected by tuberculosis at the time of the sale.” The plaintiffs tendered back the sound cattle and. demanded the return of the entire consideration which had been paid for the herd. The tender and the demand having been refused by the defendant, the present suit was instituted.
The District Judge held that there had been a failure of consideration on the part of the defendant; that the plaintiffs were entitled to recover back the entire consideration which had been paid by them; and that the defendant should take back the remaining cattle. On the defendant’s appeal this judgment was reversed by the Supreme Court of Puerto Rico, which held that the plaintiffs’ action did not rest on failure of consideration, but was redhibitory in character and was therefore subject to the forty-day statute of limitation above referred to. As the action had not been brought within this period, judgment was given for the defendant, from which the present appeal was taken.
The provision of the Puerto Rico Civil Code which in the opinion of the Supreme Court barred the plaintiffs’ action reads as follows:
“Sec. 1399. The redhibitory action, based on the vices or defects of animals, must be instituted within forty days, counted from their delivery to the vendee, unless, by reason of the customs in each locality, longer or shorter periods are established.
“This action in the sale of animals may only be enforced with regard to the vices and defects of the same, determined by law or by local customs.” Revised Statutes and Codes of Puerto Rico 1913, § 4505.
This section relates only to redhibitory actions, and the principal point of controversy is whether the plaintiffs’ action is of that character.
“Redhibitory actions,” as defined in the Supreme Court opinion, are those in which the vendee alleging a breach by the vendor of an express or implied warranty in a sale seeks to return the thing sold or part of the thing sold and to recover back all or a part of the price paid. See, too, Childs v. Wilson, 15 La.Ann. 512; Henderson v. Leona Rice Milling Co., 160 La. 597, 107 So. 459; and Enciclopedia Juridica Española, vol. 26, p. 884, referred to in the opinion of the Supreme Court. There appears to be no question but what a valid sale sufficient to support a warranty by the vendor is an essential foundation of an action of redhibition. In the present case the District Judge held that under section 1397 (Revised Statutes and Codes of Puerto Rico 1913, § 4503) tuberculous cattle could not be the subject of a contract of sale, that there had been no sale of the infected cattle, that as to them the plaintiffs’ action was not redhibitory, ’ and that the plaintiffs were not obliged to accept the sound cattle delivered with the diseased ones, but might reject the whole delivery and recover the entire consideration. For cases resting on failure of consideration a different and much longer statute of limitations applies. The Supreme Court held that there had been a valid sale of the diseased cattle which the plaintiffs were seeking to rescind and that the action was redhibitory.
The question depends on the true construction of section 1397, which reads as follows:
“Animals and cattle suffering from contagious diseases shall not be the object of a contract of sale. Any contract made with regard to the same shall be void.
“A contract of sale of cattle and animals shall also be void, when the use or service for which they are acquired being stated, they are found to be useless therefor.”
The Supreme Court, following the commentator Scaevola, held that this section did not make contracts for the sale of tuberculous cattle void, but only voidable, subject to rescission at the option of the vendee; that if the vendee elected to rescind he must return to the vendor the tuberculous cattle; that the action was accordingly redhibitory and was barred by section 1399, supra.
This construction does great violence to the language used. It completely ignores the first‘sentence of the section, viz., that “animals and cattle suffering from contagious diseases shall not be the object of a contract of sale,” and it reads “void” as “voidable.” Other sections of the Penal Code deal with the same subject-matter, i. e., cattle infected with contagious diseases, and must be considered in this connection.
“Sec. 351. Any person who shall knowingly sell, or offer for sale, or use, or expose, or who shall cause or procure to be sold or offered for sale, or used, or exposed any horse, mule, or other animal having the disease known as glanders, or any other contagious or infectious disease, shall be guilty of a misdemeanor.” Revised Statutes and Codes of Puerto Rico 1913, § 5803.
“Sec. 352. Every animal having glanders or any other contagious or infectious disease shall at once be deprived of life by the owner or person having charge thereof, upon discovery or knowledge of its condition; and any such owner or person omitting or refusing to comply with the provisions 'of this section shall be guilty of a misdemeanor.” Revised Statutes and Codes of Puerto Rico 1913, § 5804.
“Sec. 356. Every person who owns or has the custody of any cattle, horses, mules or asses infected with a contagious disease, and fails to immediately report the same to the insular health authorities, or conceals the existence of such disease, or attempts so to do, or wilfully obstructs or resists the said health authorities in the discharge of his (their) duty as provided by law, or sells, gives away or uses the meat or milk, or removes the skin or any part of such animal, is punishable by fine not exceeding three hundred dollars or imprisonment in jail not exceeding one year, or both, in the discretion of the court.” Revised Statutes and Codes of Puerto Rico 1913, § 5808.
“[Law of March 14, 1907.] Every person who knowingly sells or disposes of to another person any animal infected with or laboring under any infectious or contagious disease, or the meat, skin, hide, horns, hoofs, or any other part of an animal infected with or laboring under any infectious or contagious disease at the time of its death, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be subject to a fine of not less than one hundred dollars and not more than one thousand dollars or imprisonment in jail for not less than one month, nor more than one year, or to both such fine and imprisonment.” Revised Statutes and Codes of Puerto Rico 1913, § 118.
These sections, in connection with others which it is unnecessary to quote, taken together, form a plan for dealing with the menace to public health occasioned by diseased animals. Section 1397 is obviously an integral part of this plan and should be so considered. The Supreme Court of Puerto Rico does not seem to have had this aspect of the matter in mind. It is not referred to in the opinion, nor are the sections just quoted referred to. It is said by the court that the purchaser of a cow upon discovering that she has incipient tuberculosis has an election whether to keep her or to return her to. the vendor. “To recover the price, he must return the animal. It is entirely at his election to retain the cow.” These views cannot be reconciled with the provisions of the sections above quoted which make criminal the sale or use of infected cattle knowing them to be so, and require the custodian of cattle found to be infected to kill them at once. It is contended by the appellants that the great weight of opinion by the commentators on the Spanish and other codes which contain sections substantially like 1397 is adverse to Scaevola’s view on this point, and to the view taken by the Supreme Court of Puerto Rico. We do not think it necessary to consider this aspect of the matter; nor indeed upon such a question should we set our judgment against that of the Supreme Court of Puerto Rico. We recognize that the question before us is one on which the opinion of that court carries great weight and ought not to be set aside unless demonstrably erroneous; and we bear in mind the caution which must be exercised in dealing with such matters. B. Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209. But we see no escape from the conclusion that the Supreme Court of Puerto Rico overlooked important provisions of law and erred in disregarding the plain language of section 1397. There is no suggestion that the language of the section is ambiguous, but only that it is ill-advised and mistaken. In Helvering v. City Bank Farmers Trust Co., 56 S.Ct. 70, 72, 80 L.Ed. —, United States Supreme Court, November 11, 1935, it was said: “We are not at liberty to construe language so plain as to need no construction.” We do not understand that the Supreme Court of Puerto Rico has greater powers. See, too, Thompson v. United States, 246 U.S. 547, 551, 38 S.Ct. 349, 62 L.Ed. 876.
We think it clear that cattle having contagious diseases are, in Puerto Rico, out of the commerce of man and cannot be made the object of a contract of sale. In attempted sales of such cattle no contract arises because there is no “definite object which may be the subject of the contract” as required by section 1228 (Revised Statutes and Codes of Puerto Rico 1913, § 4334). There being no contract, there is nothing to rescind and, no property being in the vendee’s possession that can lawfully be returned, there is nothing to return. There being no contract of sale on which a warranty, express or statutory, could rest, an action to recover back the price would not be redhibitory, and -the prescription period of forty days or of six months (sections 1393, 1399 [Revised Statutes and Codes of Puerto Rico 1913, §§ 4499, 4505]) would not apply. Furthermore, under the law of Puerto Rico when a contract lacks any one of the essentials prescribed in section 1228, no contract exists; and no declaration of nullity is necessary before an action may be brought to recover the price. See Valiente & Co. v. Succession of Abdon Fuentes Marrero, 76 F.(2d) 78 (C.C.A.l). The deliveries of tuberculous cattle by the defendant to the plaintiffs amounted to nothing at all; and the payments made for them by the vendee in money and property were entirely without consideration. The action to recover such payments is not a redhibitory action and is not limited by the forty day provision of section 1399 or by the six months provision of section 1393.
If the herd of cattle which were sold be regarded as a unit and as the thing which was sold, a different result would be reached because about fifty of the cattle were sound and were legitimate objects of sale. The thing sold was not therefore completely unlawful as an object of commerce; the good portion of it would pass to the vendee and would have to be returned by him if he elected to rescind; the action would be redhibitory in character and would be limited by the provisions of section 1399. The Supreme Court of Puerto Rico did not, however, so regard the transaction. It said: “We have the idea that when cattle are sold, even for a dairy, the animals are sold individually. It is a distributive sale. It makes no difference that the sale was for a lump sum. With the exceptions noted in the chapter, only the cattle affected with a redhibitory vice” (the Supreme Court regarded tuberculosis as being of that character), “under all the codes and the commentators that we have seen, may be returned. * * * The defendant had a clear right to insist that the contract was good for the cattle that were sound. * * * Before concluding this opinion we desire to say, and this appears possibly from our general considerations, that the plaintiffs never had the right to the cancellation of the whole contract, but only to bring a redhibitory action for the animals that were suffering from or died of a contagious disease.” (Italics supplied.)
There are great difficulties in dealing with the sale of a herd of cattle for dairy purposes as a unitary thing on questions of this character. The views of the Supreme Court of Puerto Rico on this point certainly cannot be said to be clearly wrong.
To summarize: In the trial court the plaintiffs put their claim on the herd basis ; they endeavored to rescind the entire transaction and get back- the full consideration which had been paid; and they were held entitled to do so. On appeal the Supreme Court held that the sale could not be given this unitary character, but must be considered with respect to the individual animals; and that view stands. In its decisión that, as to the tuberculous cattle, a'fcontract was entered into and the plaintiffs’ rights were of redhibitory character ánd subject to the limitation of section 1399, the Supreme Court fell into error.
It follows that the judgment appealed from must be reversed, and.the cause remanded to the District Court of San Juan, with instructions to permit the' plaintiffs to amend if they are so advised. As we understand the opinion .of the Supreme Court, this is the result which would have been reached in that court if section 1397 had been given what we hold to be the necessary construction of it. At any rate, it is the just result.
The judgment of the Supreme Court of Puerto Rico is reversed, and the case is remanded to that court 'for further proceedings not inconsistent with this, opinion; the appellants recover costs of appeal.
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:
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songer_concur
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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 determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
UNITED STATES of America, Plaintiff-Appellee, v. Willie B. O’NEAL, Defendant-Appellant.
No. 13-1712.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 6, 1973.
Decided May 2, 1974.
James R. Willis, Cleveland, Ohio, for defendant-appellant.
Nancy C. Schuster, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, on brief.
Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.
EDWARDS, Circuit Judge.
This is a direct appeal from appellant’s conviction after jury trial on two counts of bank larceny, in violation of 18 U.S.C. § 2113(a) and (b) (1970). Appellant was sentenced to eight years on each count under 18 U.S.C. § 4208(a)(2) (1970), with the terms to run concurrently.
The indictment charged that appellant was one of two men who entered a bank in Mentor, Ohio, on September 12, 1972, at 11:15 a. m. dressed in Brinks messenger uniforms and received the polite assistance of bank employees in removing a shipment of $316,500 worth of cash destined for the Federal Reserve Bank and two department stores. The fake messengers thereupon made off with this cash hoard and little (if any) of it has ever been recovered.
There were eight people who saw the two fake messengers, one of whom was black and nne white. After appellant’s arrest all eight of these witnesses were present at properly conducted line-ups where appellant was in the line-up and was represented by a lawyer. None of them selected appellant on the first line-up. Two of the witnesses (female tellers who arguably had the best opportunity to observe him at the bank) did identify him positively at a second lineup as the black bogus Brinks man. Each of these tellers testified that, after picking another person from the first line-up, she had, on her own initiative, sought another opportunity to view the line-up and then had identified appellant. This positive identification was repeated at appellant’s trial where, of course, the prior misidentification was thoroughly aired.
Other than the disputed identification evidence, there is strong circumstantial evidence in this case. One of appellant’s girlfriends, Kathleen Lipchek, testified that appellant had told her sometime before the robbery that he was going to come into a large sum of money. He mentioned $400,000. He also told her that he was in “a big job” with several others, that he wished he could get out but it was too late. This witness also testified that appellant had a moustache and a goatee which he shaved off shortly before the robbery. She also testified (albeit we and presumably the jury noted that her assertion was weakened on effective cross-examination) that she saw a uniform in appellant’s apartment. On the day of the robbery she said appellant told her he was taking his children to Chicago or Mississippi; that she might not see him again; that he might be dead.
In fact, appellant left town immediately after the happening of the crime. He was arrested in Mississippi with approximately $3,500 cash on his person in denominations (mostly $50 and '$100 bills) similar to those which had been stolen. These bills were, however, unidentifiable, since no numbers had been kept. Appellant had not worked for eight months before the trip to Mississippi. One of the FBI Agents who arrested appellant testified that he had a several days’ growth of beard and a “light” moustache when arrested.
Appellant took the stand and denied being in the bank. He explained his possession of $3,500 in cash on the basis of a numbers hit. He called as a witness a male relative who had been caring for appellant’s children and who testified that appellant was at his house at the time when the bank robbery was taking place.
Of the six persons (other than the two female tellers) who had been in the bank at the time of the larceny, three were unable to make any identification. The District Judge refused to allow the defense to call these witnesses to testify before the jury. But the District Judge allowed the remaining three who identified as “familiar” persons in the line-up other than appellant to be called by the defense for examination before the jury.
Appellant claims reversible error in the District Judge’s admission of the in-court identification of appellant by the two female tellers and in the District Judge’s refusal “to specially instruct the jury as to the possible perils involved in personal identification evidence.”
Appellant also asserts that the admission into evidence of the $3,500 in cash which appellant had on his person was reversible error and that he was entitled to acquittal because the government’s evidence was insufficient to allow a jury finding of guilty beyond reasonable doubt.
We shall take the last two appellate issues first.
This court has repeatedly held that it is permissible for the prosecution to show unusual wealth in the hands of a previously impecunious defendant immediately subsequent to the happening of a theft of money. United States v. Amerine, 411 F.2d 1130 (6th Cir. 1969); United States v. Daniels, 377 F.2d 255 (6th Cir. 1967); See also United States v. Gornick, 448 F.2d 566 (7th Cir.), cert. denied, 404 U.S. 861, 92 S.Ct. 161, 30 L.Ed.2d 103 (1971). Here when appellant was arrested he had 16 $100 Federal Reserve Notes and 37 $50 Federal Reserve Notes, plus a few smaller bills on his person. The bank shipment had encompassed 200 $50 bills and 110 $100 bills. Appellant had testified that he had not held a job for six to eight months in the period immediately preceding the happening of this crime.
Appellant, however, also testified to his activities as a gambler during that period and claimed to have hit the numbers for $6,000 just before he left Cleveland. We believe that the conflict of evidence and inferences here involved was for the jury’s determination.
Nor do we agree with appellant’s contention that the District Judge erred in failing to grant his motion for acquittal. The government’s evidence (assuming for the moment that it is all admissible) was sufficient to make a prima facie case for the jury.
The real problem of this appeal pertains to the identification evidence. Here appellant accurately contends:
1) That eight witnesses saw the two bogus Brinks men;
2) None of the eight identified appellant’s picture when they were shown it by the FBI;
3) At the first line-up none of the eight identified appellant, although he was in the line-up;
4) Three of them identified another party, one Eli Felder, while two other witnesses identified still other parties; and
5) The only two witnesses who did identify appellant as one of the bogus Brinks men had previously misidentified another party.
Absent other facts, such a set of circumstances might well warrant striking from the record the proffered subsequent identification of the defendant. This, however, was no ordinary bank robbery where a sudden threat of death focuses all of the senses of those threatened upon the one who by words or action says, “The money or your life!”
Our instant crime was committed not by force, but by ruse. The bogus Brinks men appeared to bank employees and customers to be engaged in operations normal to the bank’s routine. There was no special circumstance for six of the witnesses to focus on the persons or the faces of the “Brinks Messengers.” On these grounds alone we dismiss concern about three of the witnesses (all bank customers) who never asserted either before or after the show-up that they could identify the culprits.'
As to the failure of any of the witnesses to identify a picture of appellant when shown it by the FBI, we note that the picture employed showed appellant with a full moustache and a goatee. The witnesses at the bank were unanimous in describing the black bogus Brinks man as clean-shaven. In addition, the jury had before it the testimony of Kathleen Lipchek (appellant’s girlfriend) who asserted that appellant shaved off his moustache and goatee just before the happening of the crime. They also had before them appellant’s statement that he didn’t shave it all off but that three or four days before he left Cleveland he “cut it down with clippers.” They also had before them the statement of an FBI Agent who arrested appellant in Lexington, Mississippi, 10 days after the crime th.at appellant had a several days’ growth of beard and a “light moustache.” On these facts the jury had a right to find that the black bogus Brinks man was clean shaven at the time of the crime. On this assumption it would have been remarkable had any eye-witness been able to identify appellant’s picture with a full moustache and goatee.
As to the misidentifications, some facts must be added. The line-up consisted of six young black men of the same general age. One had been added at the insistence of appellant’s lawyer. The picture of the second line-up which was introduced in evidence shows a considerable ' similarity of appearance between appellant and Felder. None of the eye-witnesses at the first line-up made any positive identification.3
The District Judge allowed appellant’s counsel to call all of those witnesses who misidentified and examine them thoroughly before the jury.
What we have said leaves the question of whether or not the District Judge should have striken the testimony of Mary Lou Grentz and Terri Kinkaid, the two women tellers who did positively identify appellant. Both of these tellers had direct contact with the two bogus guards. Both of them were kept apart from each other at all times. Both of these witnesses identified another person at the first line-up, albeit not positively. Both of them asked for a second line-up and at it positively identified appellant. Both of them positively identified appellant at trial. Although the question is not without difficulty, we conclude that the jury was entitled to and did have all the relevant evidence as to identification and misidentification. The initial misidentification on the part of these eye-witnesses to a crime did not completely destroy the value of their testimony or render it inadmissible. The jury was fully advised of the original mistake and had it as well as the subsequent testimony identifying appellant before them' to weigh. The weight to be given this evidence was for the jury to determine. United States v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970).
We believe that there is no evidence in this case of any deviation from the lineup standards enunciated in the Wade, Gilbert and Stovall trilogy. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The testimony indicates that meticulous attention was paid by the FBI Agents who conducted the line-ups to the standards enunciated in the cases cited above.
The District Court did not commit reversible error in refusing to suppress the testimony of witnesses Grentz and Kinkaid. See United States v. Cairns, 434 F.2d 643 (9th Cir. 1970).
Finally, appellant claims that even if the eye-witnesses’ testimony was admissible, the District Judge should have cautioned the jury about the dangers of misidentification and instructed the jury about how to weigh that evidence. We agree with these propositions, but on review of Judge Green’s careful 30-page instruction, we are compelled to conclude that this is what he did. Perhaps in devising a model instruction on eye-witness identification some additional cautionary language might be added. See Model Instructions in United States v. Zeiler, 470 F.2d 717, 720 n. 4 (3rd Cir. 1972); United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558-559 (1972). But if so, appellant has a duty to assist the court in providing appropriate requested instruction and a review of those submitted leads us to agree with the District Court’s refusal to give them on the grounds that they were essentially arguments of appellant’s case.
The judgment of the District Court is affirmed.
. Lipcliek’s testimony included tlie following:
“Q Calling your attention to the later part of August of 1972, did the defendant, O’Neal, say anything unusual about what might be happening in the future? A I-Ie said he would be coming—
MR. WILLIS: Objection.
THE WITNESS : Pardon me?
A He said he would be coming into — •
THE COURT: I will overrule the objection.
Q Yes?
A He said he would be coming into some money.
S¡! •!• 'll
Q Did he mention anything about amount?
A Yes. $400,000.
:¡s * * * *
Q During this conversation where he said he would be coming into this $400,000, did he mention anything else?
A He said he would be working with a few people and he said he would be coming into the money rather quickly.
Q Now, lie said ‘a few people.’
Did he say anything more relative to these people?
A Oh, he said not to remember the names or any faces that I saw, you know, around the apartment and the people he was talking to.
Q And did you see people at the apartment?
A Well, people came and went. Yes, I did.
Q And what were the race of these people?
A White.
Q Now, when he said not to- remember these people, did he say anything else? A Yes. He said if I remembered them— he said not to remember anything I saw or I might end up in the lake.”
. Appellant also contends that the court order these funds returned to appellant. We agree with the District Judge that this issue should be determined in another proceeding than this criminal trial.
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
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.
A. E. STALEY MANUFACTURING COMPANY, Plaintiff-Appellant, v. HARVEST BRAND, INC., Defendant-Appellee.
No. 71-1049.
United States Court of Appeals, Tenth Circuit.
Dec. 2, 1971.
Rehearing Denied Feb. 4, 1972.
Pickett, Circuit Judge, dissented and filed opinion.
John W. Hofeldt, Chicago, Ill., for appellant.
Edmund C. Rogers and John M. Howell, Clayton, Mo., for appellee.
Before PICKETT, HILL and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
This is a patent infringement suit brought by the A. E. Staley Manufacturing Company against Harvest Brand, Incorporated, alleging an infringement of Staley’s patent No. 3,246,336 which Staley has owned since it was issued on April 12, 1966. The patent application was filed on April 8, 1963.
Staley’s patent describes a cattle feed block which combines dehydrated molasses, liquid molasses as a wet binder, significant amounts of salt, and some type of mineral oil or edible fat. The resulting product is a highly palatable feed block for cattle or sheep from which they will eat a surprisingly consistent amount each day. Two novel benefits are derived from this regulated consumption. First, although molasses is very beneficial to cattle, too large an intake can cause scouring or diarrhea. This problem has been eliminated in the Staley patent block. Second, because cattle like the taste of molasses, unpalatable medicines can be added to the Staley block and cattle will consume them in a controlled amount. The Staley patent feed block thus accomplished two new and novel results.
The lower court found that the patent was infringed but that it was not valid. The Court found that the patent had utility but that it did not have novelty as required by 35 U.S.C. § 102 and that it was not nonobvious as required by 35 U.S.C. § 103. From this decision Staley appeals.
The lower court made no findings of fact which would negate the claim of novelty. Novelty can be disproved by showing anticipation or aggregation. McCullough Tool Company v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965), cert. denied 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966). This court said in Griswold v. Oil Capital Valve Co., 375 F.2d 532 (10th Cir. 1966) at 537 that:
“The doctrine of anticipation by patents is a narrow and technical one. To come within it, all the elements of the invention, or comparable ones, must do substantially the same work in substantially the same way and be within one structure. (Citation omitted).
As to the matter of aggregation, the doctrine requires that the prior patents, or the art generally, demonstrate the segments or elements with substantially the same results and functions.”
The Court stated in its finding of fact No. 58 that a review of all evidence disclosed a lack of novelty and non-obviousness, both of which are requirements for a patentable product. We disagree. There were no findings of fact concerning anticipation or aggregation, notwithstanding the rule that the law presumes a patent valid. 35 U.S.C.A. § 282. The great weight of the evidence does not support the Court’s conclusion on the issue of novelty.
35 U.S.C.A. § 282 provide that one who seeks to have a patent declared invalid has the burden of establishing its invalidity by clear and convincing evidence. We have conducted a thorough review of the record. In our judgment, appellee Harvest Brand has failed to sustain this burden. [For a detailed discussion of the law concerning novelty in this Circuit see Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970)].
Turning now to the issue of obviousness prescribed under 35 U.S.C.A. § 103, we have reviewed the prior art in order to determine whether a person ordinarily skilled in the art would find it obvious to combine the same elements in the same manner as Staley’s patent teaches us.
The record reveals that a person ordinarily skilled in the art would know that:
1. Animal feed blocks had been made in the past such as salt blocks, mineral blocks, protein blocks and molasses blocks.
2. Molasses had been used as a feed supplement and a carrier of unpalatable medicines.
3. Mineral oils had been used to facilitate blocking and improve the weatherability of blocks.
4. Feed supplements had been used which had high levels of salt.
5. Blocks had been made which used wet molasses as a wet binder.
The trial court made detailed findings to the effect that each and all of the ingredients employed by Staley in its patented block were well known to a man of ordinary skill in the art. The Court did not, however, make any findings dictated by the great weight of the evidence in the record reflecting the failures and drawbacks of the prior art in accomplishing the novel result achieved through the Staley patent. Each of the prior arts above referred to were wrought with practical limitations :
1. Protein and mineral blocks were designed to fill a particular need not necessarily connected with the function of a molasses-salt block. As a carrier of medicines they were failures because they were not palatable enough to cattle to hide the taste of the medicines and their consumption was too variable.
2. Molasses has long been known to aid animals with rueminate digestive tracts in digesting roughage. It has also been known to cause scouring if taken in large amounts. No molasses product was ever made before Staley’s patent which allowed a livestock operator to place the medicine carrier unattended near his stock and be assured that his cattle were getting a proper amount of medicine. Protein and mineral blocks had too great a variation of daily intake to be successfully used. All previous molasses products were too palatable to use successfully as medicine carriers. The aggressive cattle would overfeed and the timid cattle would underfeed.
3. Mineral oils were a rather novel and effective addition to the prior art. However, the addition of oils in large amounts softened the blocks.
4. Large amounts of salt have been incorporated into mineral and protein blocks to control consumption. The amount of salt used normally in these blocks is roughly the same amount as Staley used. However, with the highly palatable molasses blocks the daily consumption is relatively stable while the less palatable mineral and protein blocks show a relatively high rate of daily variation.
The evidence proves that cattle develop a tolerance for salt which they like. This can eventually lead to salt poisoning. As a factor in determining the pri- or art, this would lead one to believe that a block with a high salt content, especially when mixed with the highly palatable molasses, would slowly cause cattle to consume an increasingly larger daily ration. However, this is not true of Staley’s block.
5. The use of a wet binder in molasses blocks was old in the art. Wet molasses had been used as a wet binder with dehydrated molasses to make the blocks easier to form. Wet molasses, however, causes blocking and storage problems.
Harvest Brand claimed that the prior art would teach one to mix salt, molasses (dehydrated and wet), and oil. Its own history belies this. In 1958 Harvest Brand made 100 non-infringing dehydrated molasses blocks with a wet binder for a customer. It claimed that these blocks were successful, yet several years later when it made blocks for public sale it sold blocks which the lower court found infringed on Staley’s patent.
Staley introduced evidence showing the state of the art when it put its product on the market. Within two months after Staley marketed its patented block, VyLactos Laboratories was selling a non-infringing block called “Kattle Kandy”. It contained molasses, a high protein level (22%) and salt (1%). A witness from VyLactos testified that the salt level was 1% because that is what the experts recommended at that time. He also stated that consumption was regulated by the block density, i. e., the harder the block, the less each animal consumed. He admitted that the block was too palatable and that one had to limit the number of blocks available to the cattle because they would overfeed. VyLactos also had trouble with weatherability. Its blocks did not hold up well in rain. After about a year, VyLactos stopped producing its “Kattle Kandy” and introduced a block which is almost identical to Staley’s block.
Harvest Brand’s expert witnesses testified that it would have been easy for anyone in the feed block business to come up with Staley’s block in 1962. A Staley expert in animal feeds had previously testified that in 1962 he would have been dubious about the success of any molasses blocks which contained high levels of salt. He stated that molasses and salt are hygroscopic, i. e., they both absorb large amounts of water. He also stated that they are water soluable. For these reasons, he and a Harvest Brand witness opined, one would expect serious weathering problems in a block containing salt and molasses. Another witness for Harvest Brand stated that since salt and molasses have different characteristics, one would expect problems during the blocking process. The witness testified that from his own tests in 1963 he found that molasses needs high pressure plus some water to block successfully. Salt, however, requires low pressure and an absence of water to block well. At the time these tests were conducted, Harvest Brand had not been able to make a successful block combining salt and molasses.
Harvest Brand points out that before 1962 there were many patents involving feed blocks, molasses products, molasses with medicine, and blocks with oil among others. However, most of these patented inventions had serious drawbacks. We said in McCullough Tool Company v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965), cert. denied 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966), supra, that:
“Rudimentary or unsuccessful experiments with isolated elements of a combination do not anticipate an invention which successfully combines those elements.” (Citations omitted.) 343 F.2d at 399.
Staley admits that all of the elements are old and known in the art. However, Staley argues that as it overcame all of the problems and went against the teachings of the prior art to develop the patented block, it qualifies for a patent. We agree. As we said in McCullough, supra:
“The general rule is that before a device may be patentable, the improvement over the prior art must involve more than would be obvious to one of ordinary skill in the art. (Citations omitted). If those skilled in the art are working in a given field and have failed after repeated efforts to discover a particular new and useful improvement, the person who first makes the discovery does more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.” (Citations omitted.) 343 F.2d at 399.
We feel that Staley has made such an improvement. In Bewal, Inc. v. Minnesota Mining and Manufacturing Company, 292 F.2d 159 (10th Cir. 1961), the test for determining whether a combination was patentable was stated. At 164 we said:
“When old elements are united in such a manner that the union accomplishes either a new result or an old result in a more facile, economical and efficient way in a particular environment which presented peculiar and difficult problems, it is a true combination and patentable.” (Citations omitted.)
Staley’s inventors overcame serious practical problems in arriving at their patent and advanced the art to a new level of achievement.
The invention requires only four ingredients. The amounts are not too critical. However, simplicity is not a bar to invention as long as the steps taken are not obvious to the ordinary mechanic. Blish, Mize and Silliman Hardware Company v. Time Saver Tools, Inc., 236 F.2d 913 (10th Cir. 1956), cert. denied 352 U.S. 1004, 77 S.Ct. 565, 1 L.Ed.2d 549 (1957); Goodyear Tire & Rubber Co., Inc. v. Ray-O-Vac Company, 321 U.S. 275, 64 S.Ct. 593, 88 L.Ed. 721 (1944).
We are mindful of the rule stated in Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970), supra, that the ultimate validity of a patent is a legal question for the trial court, based on findings of fact.
Staley’s contested patent recognized that the value of feeding molasses to livestock was old in the art. It recited, however, the nutritional values and drawbacks which had previously restricted the use of feeds containing a high percentage of molasses, i. e., excessive consumption had exceeded the most efficient feed utilization and could not be conveniently and economically fed in open range. The key claim, then, in the Staley block was the use of a high percentage of molasses with salt which proved (1) to be resistant to weathering in the open range; (2) to provide in a controlled manner a source of fermentable carbohydrates for ruminants; (3) to control consumption on an economical per unit basis ; and (4) to be a palatable feed block which could include a horn fly controlling amount of phenothiazine. Appellant argues that the product of these claims was entirely new and that the new product proved to have a different and surprising result. We agree. There was no contrary argument, and the lower court specifically found that the Staley feed block is useful and performs the beneficial functions claimed for it. The question of invention and thus, patentability, is one of fact involving consideration of novelty, utility, commercial success, satisfaction of long-felt want, unsuccessful efforts of others, public acquiescence in validity, imitation, experiments, and independent production by others. 69 C.J.S. Patents § 70 (1951).
Substantial evidence means evidence which affords a substantial basis of fact to support a conclusion. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In its Addendum Comment the trial court concluded that “There is no new co-operation among the ingredients that produces either a different product or a different result than is known in the prior art.” Having thus found, the Court specially concluded that the Staley patent lacks novelty and non-obviousness. This conclusion necessarily involved application of the fact-law process. We are persuaded, on the entire evidence, that a mistake has been committed. See United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). We hold that the district court erred in its conclusion that the Staley patent lacked novelty and non-obviousness. Therefore, we must reverse. We hold that the Staley patent is valid. We remand for further proceedings determinative of Staley’s prayer for injunctive relief and damage award.
Reversed and remanded.
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_habeas
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Gilbert NIETO, Petitioner-Appellant, v. George SULLIVAN, Respondent-Appellee.
No. 87-1981.
United States Court of Appeals, Tenth Circuit.
June 26, 1989.
Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.
William McEuen, Asst. Atty. Gen., Santa Fe, N.M. (Hal Stratton, Atty. Gen., Santa Fe, N.M., was also on the brief) for respondent-appellee.
Before HOLLOWAY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges.
HOLLOWAY, Chief Judge.
Petitioner-appellant Gilbert Nieto appeals from the district court’s order dismissing his petition for a writ of habeas corpus and adopting the findings and recommendations of the Magistrate. Petitioner was convicted in a New Mexico state district court, following a jury trial, of the assault, battery and armed robbery of Francisco Rodriguez. We affirm.
I.
THE FACTUAL AND PROCEDURAL BACKGROUND
On the night of January 13, 1983, Francisco Rodriguez and his cousin, Mauricio Carreon, were playing video games at a local 7-Eleven store in Albuquerque. As the two left the store, they were abducted by three men and forced into Rodriguez’ truck. Rodriguez was directed to drive to an area near the Rio Grande River, while two of the attackers pointed weapons at him.
Upon their arrival at the river bank, the three men took Rodriguez’ money, class ring, Levi jacket and watch. Rodriguez and Carreon were ordered to lie down in the dirt while the three attempted to start the truck and leave. During this time, Rodriguez and Carreon jumped up and fled. Both Rodriguez and Carreon notified the police of the incident that evening and gave Albuquerque Police Officer, Jean Kurdoch, descriptions of the three assailants. Rodriguez told Officer Kurdoch that one of the attackers was a Hispanic male approximately 30 years old, with a playboy bunny tattooed on his neck and tattoos of women on his right forearm.
Officer Kurdoch, relying on Rodriguez’s description of the attacker with a playboy bunny on his neck, compiled a photo array from the identification bureau of the Albuquerque Police Department. This array included a picture of Nieto, as well as one other Hispanic male with a playboy bunny tattoo on his neck. When Rodriguez was presented with the photo array approximately two months after the incident, he identified Nieto as the oldest of the three attackers.
At trial, the state’s case consisted of only the testimony of Officer Kurdoch and Rodriguez. Neither the State nor the defense called Carreon as a witness. Nieto himself was the only defense witness. He testified that he did not know where he was on the day or night of January 13, 1983. He further testified that he was arrested on February 22, on a state charge of breaking and entering. Nieto also showed his tattoos located on his neck and right forearm to the jury. The jury returned a verdict of guilty on all counts.
In Nieto's direct appeal to the New Mexico Court of Appeals, the following issues were raised: (1) whether the prosecutor’s references to matters not introduced in evidence and to Nieto’s mug shot denied Nieto his right to due process and a fair trial; (2) whether the closure of the courtroom during Rodriguez’s testimony denied Nieto’s right to a public trial. The Court of Appeals affirmed and the New Mexico Supreme Court denied certiorari.
II.
ANALYSIS
Nieto asserts in his petition for habeas relief that he was denied a fair trial as a result of the State’s references to his mugshot and incarceration, to a non-testifying witness, and to a psychological phenomenon called “object focus.” He also contends that his right to a public trial was violated when the trial court closed the courtroom during the testimony of Rodriguez. The State responds that two of these issues have been procedurally waived, thus barring federal court consideration of these issues. Furthermore, the State argues even if the issues presented by Nieto are not barred, they are meritless.
A.
PROCEDURAL DEFAULT AND WAIVER
The State relies on Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and argues that Nieto has procedurally defaulted and waived any claims of error as to references made by the prosecutor during the trial to Nieto’s mug shots and incarceration. The State asserts that Nieto procedurally defaulted and waived any right to claim error as to the prosecutor’s references to the phenomenon called “object focus.” We agree that the claim relating to references to Nieto’s prior incarceration was waived; we hold, however, that the claims relating to references to mug shots and “object focus” were preserved by Nieto.
The Engle case is inapposite. There the issue was whether the petitioners could proceed with their federal habeas proceeding when they failed to raise and preserve their constitutional issue in the state courts by compliance with a state procedural rule for contemporaneous objections to jury instructions. Id. at 124-125, 102 S.Ct. at 1570. Here the State relies on Engle to argue that Nieto failed to preserve the issues for federal habeas review by failing to assert contemporaneous objections during his trial. The New Mexico Court of Appeals, however, clearly addressed the merits of the constitutional issues concerning the references to Nieto’s mug shot and “object focus.” IR. doc. 11, exh. “A”, pp. 9-11. Thus, unlike the petitioners in En-gle, Nieto is not barred from obtaining federal habeas review of the issues concerning the mug shot testimony and the prosecution’s statements concerning “object focus” phenomenon.
On the other hand, the New Mexico Court of Appeals clearly stated that any error regarding the prosecutor’s reference to Nieto’s incarceration was not preserved for review. I R. doc. 11, exh. “A”, p. 10. Nieto has not offered any explanation for his counsel’s failure to object to the State’s reference to his incarceration. In fact, Nieto testified that he was incarcerated at the time of his trial and his counsel mentioned this fact during closing argument. Nieto has failed to show cause for the default and any actual prejudice from the alleged error. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); See also United States v. Hay, 527 F.2d 990, 997 (10th Cir.1975) (“[a]ny error in admitting evidence is cured by the defendant’s admission concerning the same facts”). Therefore, this issue is not subject to review through federal habeas proceedings. Harris v. Reed, 109 S.Ct. at 1042-44.
B. MUG SHOT TESTIMONY
Nieto argues that Officer Kurdoch’s references to his mug shot during her testimony on direct examination is “prejudicial on its face.” Appellant’s Brief at p. 10. Officer Kurdoch testified that mug shots are made of people who are arrested. Therefore, prejudice to Nieto arose from the jury’s consequent awareness of his prior arrest and possible past convictions.
However, in light of Nieto’s own testimony that he had been previously arrested and was presently incarcerated, and his counsel’s references to his prior arrest and mug shot during closing argument, we cannot agree that Neito was denied a fair trial or prejudiced by the officer’s mug shot testimony. See Tapia v. Rodriguez, 446 F.2d 410, 413-16 (10th Cir.1971) (defendant’s counsel’s failure to object to testimony and references to a “mug book” did not constitute ineffective assistance of counsel nor constitute fundamental error). Fish v. Cardwell, 523 F.2d 976, 977-78 (9th Cir.1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 801, 46 L.Ed.2d 654 (1976) (reference to defendant’s mug shot is not prejudicial error where defendant’s own counsel elicited the statements).
C. “OBJECT FOCUS” REFERENCE
Next, Nieto asserts the prosecutor’s statements during closing about a psychological phenomenon called “object focus” deprived him of due process. Specifically, Nieto argues the State’s reference to “object focus” was not supported by any evidence and was used to improperly distract from Rodriguez’ incorrect or incomplete discretions of tattoos worn by his attacker. The State responds that Nieto’s failure to object at trial constituted procedural default. In addition, the State argues that Nieto’s counsel disavowed any belief that an error was committed by his statements during closing that he had no objection to the “object focus” references and sought to use the phenomenon to Nieto’s advantage.
It is generally accepted that counsel during closing must confine their argument to admitted facts in evidence. However, to infer that the State’s reference to “object focus” was improper does not necessarily establish that the reference itself deprived Nieto of due process. For an improper remark to cause reversal, it must also be prejudicial; infringement of due process by such conduct must involve unfairness in the trial.
Because Nieto’s counsel disavowed any objection to the “object focus” phenomenon during his closing, and in fact used the phenomenon to Nieto’s own advantage, it would be difficult for us to find that the State’s reference was prejudicial. Cf. Mason v. United States, 719 F.2d 1485, 1489 (10th Cir.1983) (failure of defendant’s counsel to object during closing tends to indicate there was not a serious objection to the argument). Just as a defendant cannot complain of any error he invites upon himself, United States v. Hooks, 780 F.2d 1526, 1535 (10th Cir.1986), he cannot take advantage of an alleged error brought on by the State during trial and then later complain about it in a habeas proceeding. Review of the record convinces us that Nieto was not prejudiced or denied a fair trial by its use. There is no showing by Nieto that he was prejudiced by the State’s reference to “object focus” during the closing argument. See Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).
D. REFERENCES TO MAURICIO CARREON
Another alleged victim of the January 1983 incident, Mauricio Carreon, was referred to often by the State during the course of the trial, including what his testimony would be, even though he was not called to testify. In its opening statement the State made reference to Carreon’s physical description and eventual photo identification of Nieto. In addition, during Rodriguez’ direct examination, the prosecutor questioned him about Carreon. Finally, during his closing argument the prosecutor told the jury that Carreon would not come to the trial because he was deathly afraid. It is these references to Carreon which Nieto points to as denial of a fair trial.
After the prosecutor’s opening statement, which contained comments about Carreon’s physical description of Nieto, Nieto’s counsel requested a bench conference. It was revealed that the State was not going to call Carreon as a witness. Nieto’s counsel moved for a mistrial on the basis that the State interjected a confrontation problem arising from Carreon’s alleged identification. The court denied the motion for a mistrial and reminded the jury that opening statements were not evidence.
In the court’s opening instructions the jury was advised what was to be considered as evidence and that their verdict must be based only on the evidence and testimony heard at the trial. The court admonished the jury that opening statements by counsel were not evidence. Both the prosecutor and Nieto’s counsel prefaced their openings by saying that their statements were not to be considered evidence.
We do not believe that the prosecutor’s references to Carreon during his opening remarks denied Nieto a fair trial and caused the jury to disregard the instructions to not treat the opening statements as evidence. See United States v. Humer, 542 F.2d 254, 255 (5th Cir.1976); see also Frazier v. Cupp, 394 U.S. 731, 735-37, 89 S.Ct. 1420, 1422-23, 22 L.Ed.2d 684 (1969). We also feel that since it was Nieto’s counsel who asked Officer Kurdock as to who had given her the descriptions used in developing the photo array (to which she responded that both victims gave her the description) there was not a persuasive argument for reversal.
Nieto asserts that the questions regarding Carrion during Rodriguez’ direct examination were prejudicial. Most of these questions were general in nature and provided background information about the armed robbery. These questions were relevant to the circumstances of the crime. Nieto takes particular issue with the prosecutor’s attempt to get Francisco to divulge why Carreon would not come to the trial. Nieto’s counsel made an objection to this inquiry, which was sustained by the trial court, and the question was not answered.
In our view the unanswered question concerning why Carreon would not attend trial did not have any substantial likelihood of changing the jury’s verdict, and we feel reversal is not required. United States v. Glover, 677 F.2d 57, 58 (10th Cir.1982). We note also that the court earlier instructed the jury that it could not consider any evidence to which an objection was sustained and could not speculate as to the answer of any question which the court ruled could not be answered. II R., T. 3, 12/19/83 at 22-29. The court’s introductory instructions prevented Nieto from being prejudiced by the prosecutor’s attempted inquiry. Glover, 677 F.2d at 58. Additionally, because the prosecutor’s inquiry was isolated, we do not believe the jury’s verdict was improperly influenced. United States v. Begay, 833 F.2d 900, 903 (10th Cir.1987).
During closing argument, Nieto’s counsel said “Where is Mauricio? There was another witness. Where is he?” II R., T. 7, 12/20/83 at 372. In rebuttal, the prosecutor responded:
... What about Mauricio Carreon? That’s right. Defense counsel could have subpoenaed him. I asked Francisco, “Where is Mauricio?” As I recall, he said, “He won’t come.” I know what’s happening — the man is sixteen, seventeen years old. He’s deathly afraid also, I’m sure.
II R., T. 7, 12/20/83 at 695-702. Counsel for defendant objected and the court sustained the objection. Nieto argues that while his inference regarding Carreon was proper, the State’s response was improper and highly prejudicial.
While we agree that the prosecutor’s comment that Carreon was “deathly afraid” to testify was clearly improper, we find no constitutional error on this point. Due process analysis in habeas cases focuses on the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). Fairness of the trial is not generally determined on the basis of the prosecutor’s statements or conduct standing alone, but must be viewed in context of the whole trial. United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). The standard that governs in a habeas proceeding “is ‘the narrow one of due process, and not the broad exercise of supervisory power.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)).
In the context of the entire trial we cannot agree that due process was denied. First, the State’s comment about Carreon was in response to Nieto’s counsel’s statement implying that the State could have called Carreon to testify. Although this alone does not purge the impropriety of the statement, see Young, 470 U.S. at 12, 105 S.Ct. at 1044, it may affect the context in which the improper statement is viewed by the jury. Here, the prosecutor’s statement was in response to Nieto’s counsel’s remark that Carreon, an alleged victim of the incident, was not called to testify. Although the prosecutor’s comment that Car-reon was deathly afraid was clearly improper, he did not comment on any other matter such as Carreon’s physical description and photo identification of Nieto made to Officer Kurdoch during her investigation. Second, the court instructed the jury that counsel’s statements were not to be considered as evidence. Third, the trial court sustained Nieto’s objection to the prosecutor’s remark about Carreon being-deathly afraid. Fourth, after reviewing the evidence against Nieto, we do not believe the prosecutor’s improper closing statement tipped the scales in favor of the State. See Robison v. Maynard, 829 F.2d 1501, 1509 (10th Cir.1987). Thus, we hold that there was no due process violation by the remark.
E. THE CLOSURE OF THE TRIAL
Nieto argues that there was a “Closure of The Trial” during the testimony of the State’s complaining witness, Rodriguez; that the trial judge offered to close the courtroom to all but the jury, the defendant, the attorneys and the court staff; that the court’s ban deprived him of the support of his family and friends, and also encompassed the press and the general public, resulting in denial of Nieto’s right to a public trial in violation of his Sixth Amendment rights and of the New Mexico Constitution.
Immediately before commencement of the trial a hearing was conducted in the trial judge’s chambers. This was attended by the trial judge, the prosecutor, Nieto’s attorney, Rodriguez, and Juan Benavidez, a friend of Rodriguez who acted as his interpreter. The court held this hearing because the State had brought to the court’s attention the fact that Rodriguez was worried about testifying since two of the assailants were still at large. The trial judge told Rodriguez he had no choice as to whether he would testify and that he was required to do so on behalf of the State.. The judge told Rodriguez that if he did not testify he would be sent to jail and that he would get all the protection that he is entitled to after he testified.
Rodriguez was then asked by the judge whether he would testify or go to jail. Rodriguez said he guessed he would go to jail. The judge explained there were thousands of victims in the same position that he was in and that since he had been on the bench, he had not seen anyone who testified as a victim beaten up by a defendant. The judge explained that the State had decided to bring the charges.
After some further discussion about Rodriguez’ concern with identifying Nieto in a photo array, the judge repeated that Rodriguez would be required to go to jail if he did not testify. The judge stated that he “understands Francisco’s worries, but that he is not convinced that they are legitimate because retaliation doesn’t happen to most people who testify in court, and secondly, there is no guarantee that Nieto wouldn’t do anything once he got out of jail.”
After the judge instructed Rodriguez and Benavidez to confer alone in another room about whether Rodriguez would testify or go to jail, the following colloquoy took place between the judge, the prosecutor and Nieto’s attorney:
JUDGE: Well, we’ll see what again, we’re waiting for him to decide what he wants to do and of course it can be up to the State too, but if the State doesn’t dismiss the case, the court’s intention would be to send him to jail.
PROSECUTOR: Judge, I would have great difficulty with doing that.
JUDGE: Okay. Again, I would make sure he wasn’t around any of the other prisoners if that was your worry that he would be contacted or hurt.
PROSECUTOR: Well, judge could I have a few moments to discuss this with my supervisor downstairs, could I have another moment?
JUDGE: Okay, sure. And as I indicated I don’t know how long I’d keep him in jail, but I’d keep him in jail at least until tomorrow.
PROSECUTOR: Okay. Thanks judge. I’ll go down and talk to Mr. Gazowski.
After Rodriguez and Benavidez returned, the following discussion among the parties took place:
JUDGE: Okay we’re in chambers now out of the presence and hearing of the jury again and Mr. Velasquez would you ask Mr. Rodriguez what he wants to do now—
PROSECUTOR: Ah, Mr. Benavidez.
JUDGE: Oh, Mr. Benavidez, I’m sorry.
INTERPRETER:.... Let’s go ahead and do it.
JUDGE: Are you willing to testify?
INTERPRETER: I don’t have another choice.
JUDGE: Okay, let’s go ahead and do it.
JUDGE: Okay, and let me — is Mr. Bena-videz, is he going to be the translator?
NIETO’S ATTORNEY: No, we’ll have Ms. Decourt as translator judge.
JUDGE: Okay, okay. And if there is some confusion about what he’s suppose to do you’ll tell him that in no way did the court intend to indicate previously that he was to do anything but to tell the truth and to the best of his memory and that’s all I want him to do to the best of his memory. Would you tell him that. (Interpreter translates this to Rodriguez).
PROSECUTOR: And judge can we also make certain that no relatives of the defendant would be in the courtroom during the testimony of the victim?
JUDGE: Yes, we’ll make sure of that and if he wants to—
INTERPRETER: Judge, can I ask you something. These relatives aren’t going to be there, right?
JUDGE: No, his relatives will not be present when he’s testifying and if he wants he can wait in our court reporter’s office until it’s time for him to testify. We’ll show you where that is and then we’ll bring him into the courtroom through the jury room when he comes in to testify and then we’ll make sure he gets out without having to see them.
INTERPRETER: Okay.
JUDGE: Okay?
Before Nieto’s counsel began cross-examination of Rodriguez, he requested that the courtroom be reopened so that Nieto’s sisters and other relatives could attend the trial. Nieto’s counsel’s basis for the request was that Rodriguez testified on direct that he was not afraid and there was no evidence that anyone had threatened him. The court denied the request stating, “The hearing indicated Mr. Rodriguez was worried about his safety... ”, “I don’t know what he meant by afraid... I’ll keep the courtroom closed until such time as he’s finished testifying. At that time the defendant’s relatives will be at liberty to enter the courtroom.” (emphasis added). Nieto’s counsel stated that was over his objection. II R., T. 5, 12-19-83, 171-186. During cross examination, Rodriguez testified that neither Nieto nor Nie-to’s family or friends contacted him. II R., T. 6, 12-19-83, 24-26.
The Sixth Amendment guarantees that “the accused shall enjoy the right to a speedy and public trial...” The Fourteenth Amendment guarantees defendants in state prosecutions a public trial. In re Oliver, 333 U.S. 257, 266-73, 68 S.Ct. 499, 504-07, 92 L.Ed. 682 (1948). The right to a public trial belongs to the accused, not to the public. Estes v. Texas, 381 U.S. 532, 588-89, 85 S.Ct. 1628, 1662-63, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring); see also Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984).
The right to an open trial, however, may give way in certain cases to other rights or interests such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Waller, 467 U.S. at 45, 104 S.Ct. at 2214; see e.g. Douglas v. Wainwright (Douglas I), 714 F.2d 1532, 1544-45 (11th Cir.1983) (exclusion allowed of public other than defendant’s family and press from courtroom to protect a testifying rape victim-witness from insult and embarrassment), vacated and remanded, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874 (1984), reinstated, (Douglas II) 739 F.2d 531 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985); United States v. Hernandez, 608 F.2d 741, 747-48 (9th Cir.1979) (spectators excluded from courtroom during examination of witness who was in fear of his own personal safety after being threatened); United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2nd Cir.1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966) (spectators except press and the bar excluded to maintain order in the courtroom); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2nd Cir.) cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (proper to exclude public from courtoom during testimony of a confidential informant).
A defendant’s Sixth Amendment right to a public trial and the purposes of the guarantee were analyzed by the Court in Waller, 467 U.S. at 44-47, 104 S.Ct. at 2214-15. In the context of a total closure of a suppression hearing, the Court stated that the applicable rule was that from Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984):
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
In Waller, the Court held that the closure of the defendant’s entire suppression hearing was improper. Id., 467 U.S. at 48, 104 S.Ct. at 2216.
Nieto argues that we should apply the “overriding interest” standard articulated in Waller to the facts here. He asserts there was a total closure during the testimony of Rodriguez, relying on the trial judge’s comment made at the pre-trial hearing that during Rodriguez’ testimony only the defendant and the jury would be present. II R., T. 1 at 126-30. We do not feel the record shows a total closure of the courtroom, with only the defendant, the jury and, of course, the judge and court staff present. The New Mexico Court of Appeals observed that the record affirmatively indicated that only Nieto’s relatives were excluded from the courtroom during Rodriguez’ testimony. I R. doc. 11, exh. “A”, p. 6. The U.S. Magistrate considered affidavits submitted by the trial prosecutor and Nieto’s trial counsel in addressing the issue of the extent of closure. In his proposed findings, the Magistrate concluded that there was no basis to disregard the New Mexico Court of Appeals finding that the closure only affected Nieto's relatives during Rodriguez’ testimony. I R. doc. 24, p. 5. The Federal District Court fully adopted the Magistrate’s proposed findings and recommendations in the habeas proceeding. I R. doc. 26.
Under the habeas corpus provisions of 28 U.S.C. § 2254, federal courts are required to afford a state court determination of a factual issue a “presumption of correctness.” Sumner v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). Such a presumption favoring state court factual findings applies unless certain stated exceptions are shown to exist or are admitted. 28 U.S.C. § 2254(d)(l)-(8). A federal habeas court may disregard the state court finding if the petitioner “establish[es] by convincing evidence that the factual determination by the State court was erroneous.” Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.1984). Here we agree with the Magistrate and the District Court that we should accept the finding of the New Mexico Court that the closure of the trial was partial, with exclusion of only Nieto’s relatives during the testimony of Rodriguez.
In Waller, in the context of the total closure of an entire suppression hearing of several days, the Court applied the “overriding interest” standard. We note, however, that the Ninth and Eleventh Circuits have applied a less stringent test of a “substantial reason” where partial closures are held necessary. See United States v. Sherlock, 865 F.2d 1069, 1077 (9th Cir.1989); Douglas I, 714 F.2d at 1540-41 (11th Cir.1983). We are persuaded that we should apply the less stringent “substantial reason” test in the context of this habeas case in determining whether there was a violation of the petitioner-appellant’s right to a public trial, by the partial closure ordered during the testimony of Rodriguez, when relatives of the defendant Nieto were excluded from the courtroom.
In making the determination whether there was an infringement of the public trial right, we consider the interests identified by the Supreme Court which are protected by the Sixth Amendment right to a public trial. These include the opportunity of interested spectators to observe the judicial system, the improvement of quality of testimony, the inducing of unknown witnesses to come forward with relevant testimony, insuring that the trial judge and prosecutor perform their duties responsibly, and discouraging perjury. See Waller, supra, 467 U.S. at 46, 104 S.Ct. at 2215; Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608 (1979). Moreover, in In re Oliver, 333 U.S. 257, 271-72, 68 S.Ct. 499, 506-07, 92 L.Ed. 682 (1948), the Court noted that “without exception courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged....” (footnote omitted); see Aaron v. Capps, 507 F.2d 685, 687-88 (5th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 153, 46 L.Ed.2d 112 (1975); State v. Ernest Klem, 438 N.W.2d, 798, 803 n. 5 (N.D.1989).
We are persuaded that no violation of petitioner Nieto’s Sixth Amendment right to a public trial occurred. The State trial court held a hearing just before the commencement of trial, as noted, attended by the prosecutor, Nieto’s attorney, the State’s witness Rodriguez, and his friend Benavidez who acted as his interpreter. The colloquies at the hearing are quoted at some length in the preceeding text and footnotes. See notes 11,12, and 13. There are clear references to Rodriguez’ fear or concern about his two other assailants who had not been apprehended. There was worry because Nieto knew where Rodriguez lived and “Nieto’s brothers know where he lives.” The police had advised Rodriguez to buy himself a gun.
The prosecutor requested that it be made certain that no relatives of Nieto would be present during the victim’s testimony; and then the interpreter for Rodriguez repeated the inquiry: “These relatives aren’t going to be there, right.” The judge then said the relatives would not be present while Rodriguez testified and that he could wait in the court reporter’s office until it was time to testify and then “we’ll make sure he gets out without having to see them.” Finally, the reason for the partial closure was made clear when the judge denied the request of Nieto’s counsel to admit Nieto’s sisters and other relatives during cross-examination of Rodriguez, the judge stating: “The hearing indicated Mr. Rodriguez was worried about his safety....”
We are convinced that the trial judge had “a substantial reason for the closure.” United States v. Sherlock, 865 F.2d at 1077. He conducted a hearing where the circumstances were discussed and tailored his order to what relief he felt needed, exclusion of the relatives of Nieto during Rodriguez’ testimony, with others present and no secrecy imposed on the proceedings. We hold that Nieto’s constitutional right to a public trial was not violated by the partial closure of the trial in light of the circumstances of this record.
Ill
Accordingly, the judgment of the District Court denying the writ is
AFFIRMED.
. Nieto was later convicted of this charge and was incarcerated at the time of trial.
. Although the New Mexico Court of Appeals’ opinion is ambiguous as to whether the issues complained of by Nieto were addressed on their merits or as procedually barred, we are not restrained from deciding the merits of those issues here because the state appeals court interchangeably discussed both methods of disposing the issues. Harris v. Reed, — U.S. -, 109 S.Ct. 1038, 1042-44, 103 L.Ed.2d 308 (1989).
. We have already determined that this argument is without merit. See Section II, A, supra.
. The prosecutor stated:
"... also provided to the police department at the time was a physical description by Francisco and Mauricio in terms of what these people looked like, II R., T. 3, 12/19/83 at 129-30,... and evidence will also show that not only did Francisco Rodriguez make that selection, but at a separate point, Mauricio Carreon also made that same selection of photograph number five as being the person who assaulted them from the area of Central and University." II R., T. 3, 12/19/83 at 148-53. (The tape numbers are readings from the tape counter of a Dictaphone Model No. 2250).
. These questions were asked concerning Car-reon:
Q: On that date did you have occasion to be with a friend of yours by the name of Mauricio Carreon?
Q: How did you know Mauricio?
Q: How old is Mauricio?
Q: Do you know where Mauricio is now?
Q: Why won’t Mauricio come?
Q: Mr. Rodriguez, where were you with Mauricio on January 13th?
Q: And was Mauricio also playing [the games]?
Q: Where was Mauricio Carreon during this time?
II R., T. 4, 12/19/83 at 340-55, 359 & 443.
. We note that Nieto’s counsel did not object to Officer Kurdock’s answer.
. See fn. 6, infra.
. Nieto's reliance on Hutchins v. Wainwright, 715 F.2d 512 (11th Cir.1983) is misplaced. In Hutchins, the petitioner claimed a Sixth Amendment violation arising from the prosecutor’s reference in closing argument to an eyewitness who was afraid to testify because of fear of retribution. Id. at 515. Here, Nieto claims no Confrontation Clause infringement.
. The record does not show how many relatives were present.
. We discuss only the federal constitutional claim since the assertion of violation of the State Constitution is not cognizable under 28 U.S.C. § 2254(a). Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984).
.The fear of Rodriguez was discussed in the following colloquy:
COURT: Mr. Rodriguez, have you been contacted by anybody? II R., T. 1 at 18-19.
INTERPRETER: He’s afraid because of what happened to him. Id. at 23-24.
COURT: Why won’t he testify in this matter? Id. at 25
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
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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.
Edward R. CHILDS, Jr., Plaintiff-Appellant, v. Ernest PELLEGRIN, State Commissioner of Corrections; William Long, former State Commissioner of Corrections; Ron Bishop, Director of Programs; Dick Baumbach, Public Information Officer; Herman C. Davis, Warden, Fort Pillow State Farm; Kay Bradshaw; Davis Mills; Ross Bates; Marvin Smith; Bill Howell; Charles Cubine; Charles Piphus; Wayne Carpenter; Jim Rose, former Warden of Tennessee State Prison; Michael Dutton, Warden, Tennessee State Prison; James L. Vandever; Fort Pillow State Farm Tactical Squad; Lake County Regional Facility Tactical Squad, Defendants-Appellees.
No. 84-5605.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 1, 1986.
Decided June 24, 1987.
David Himmelreich, Atty. Gen., Nashville, Tenn., for Ernest Pellegrin.
Robert B. Littleton, Nashville, Tenn., for Ron Bishop and Dick Baumbach.
Patrick T. Nesbitt, Cincinnati, Ohio, for Edward R. Childs, Jr.
Bob Lynch, Jr., Nashville, Tenn., for Rose, Dutton and Vandever.
C. Hayes Cooney, Matthew J. Sweeney, III, Cyrus R. Booker, Nashville, Tenn., for Lake Co. Tactical and Ft. Pillow Tactical.
Before JONES and RYAN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
RYAN, Circuit Judge.
Plaintiff Childs, a prisoner in the Tennessee State prison system, appeals the dismissal of his civil rights complaint under 42 U.S.C. § 1983. We reverse.
I.
On July 11, 1983, Childs was a prisoner in the Fort Pillow State Prison in Tennessee, assigned to an outdoor work detail. He was standing in the prison yard when that work detail was ordered to report for duty. On this particular day, in keeping with an inmate-initiated work stoppage, no prisoners reported for duty when called. All the prisoners in the prison yard were herded to one corner of the yard and constrained with temporary fencing.
The work stoppage continued the next day, July 12, 1983. At one point on this second day, four of the inmates who were confined in the yard attempted to pass through an opening in the fencing while holding a white cloth over their heads. In response, guards opened fire with shotguns and all four inmates were wounded. Childs was standing nearby at the time but was not hit.
The following day, July 13, 1983, Childs was removed from the yard and transferred to the Tennessee State Prison. He was immediately placed in administrative segregation. The next day, Childs received an “involuntary administrative segregation placement report” signed by the prison warden, which stated that he was being placed in administrative segregation because he was believed to be the instigator of the sit-down strike at Fort Pillow. Childs signed this report.
On July 15, 1983, a three-member “discipline board” approved Childs’ placement in segregation, due to the seriousness of the allegations against him. Childs later claimed that he “went before a disciplinary board” on July 15 and that at that time “they dismissed the charges against me.” Childs’ recollection conflicts with the written report.
Two weeks later, however, on July 27, 1983, a hearing was held before a three-member “administrative segregation review board.” The written report does not reflect whether the charges against Childs were “dismissed” at this time. However, the board recommended that Childs be released into the general prison population. The warden rejected the board’s recommendation pending completion of an investigation by “Internal Affairs.”
One month later, on August 26, 1983, plaintiff again was reviewed by the administrative segregation review board. Child’s request that he be allowed to remain in administrative segregation until he could be transferred to another institution was granted.
The next month, on September 21, 1983, Childs was again reviewed and again requested that he remain segregated until transferred. The report also states that Childs had been “cleared of being the instigator of the work stoppage.” Childs remained segregated and continued to receive reviews approximately once a month until at least March 1984. Eventually, he was transferred to the Lake County Regional Prison, where he apparently remains at this time. The record does not disclose why Childs was not transferred from the Tennessee State Prison earlier.
On February 17, 1984, while still at the Tennessee State Prison, Childs filed a § 1983 complaint. This complaint was a form which Childs filled out in longhand, to which he attached several pages of additional detail. The complaint charged, among other things, that Childs had been forced to participate in the work stoppage, that he had been falsely accused of instigating the work stoppage, and that after the allegations were dismissed on July 15, 1983, he was still held in administrative segregation and deprived of privileges such as work status and back pay. Childs also sought, and was granted, the right to proceed in forma pauperis.
In the complaint, and in a separate motion filed on March 26, 1984, Childs asked that counsel be appointed for him. This request was denied.
On April 17, 1984, Childs filed a “Supplemental Motion for Usage of Law Books, Materials, Typewriter, Etc.” This motion alleged that Childs was being denied the use of law books, legal materials, pen, pencils, and paper. The motion also alleged that his requests for legal materials went unanswered for periods up to three weeks, and that he had been told by prison officials that inmates placed in segregation are “not permitted” access to such materials. This motion was not accompanied by a certificate of service, and apparently was never served on the defendants. One of the briefs filed in this court states that “at least some of the Defendants did not have notice of the claim.” Apparently, no response to this motion was ever made. Childs never pursued the matter further, and the district court has not ruled on the motion.
The district court did, however, provide Childs an opportunity to appear at an evidentiary hearing on May 29, 1984. At the hearing, Childs testified regarding the events of July 1983, and following, upon which his complaint was based. The same day the district court dismissed the claim,for the- reasons stated in a short memorandum opinion. Childs appeals from the order that accompanied that opinion.
II.
Childs’ allegation that he has been denied his right of access to the courts has two components: first, the failure to appoint counsel, and second, the failure to assure adequate access to legal materials.
Under 28 U.S.C. § 1915(d):
The court may request an attorney to represent any [litigant who is proceeding in forma pauperis ] unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.
As this statute makes clear, “the appointment of counsel in a civil case is, as is the privilege of proceeding in forma pauperis, a matter within the discretion of the court. It is a privilege and not a right.” United States v. Madden, 352 F.2d 792, 793 (9th Cir.1965). The effect of the statute is to permit the court to pass on the sufficiency of the complaint in a preliminary way before appointing counsel. As this court has recently stated, appointment of counsel is not necessary when it is apparent that the appointment would be “a futile act.” Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir.1985). “Appointment of counsel pursuant to 28 U.S.C. § 1915(d) is not appropriate when a pro se litigant’s claims are frivolous ... or when the chances of success are extremely slim.” Id. (citations omitted).
The second component of Childs’ access to the courts claim has its basis in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), where the Court stated:
[O]ur decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts. It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them.
Id. at 824-25, 97 S.Ct. at 1496. The Court went on to hold
that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.
Id. at 828, 97 S.Ct. at 1498 (footnote omitted). The Court reasoned:
Although it is essentially true, as petitioners argue, that a habeas corpus petition or civil rights complaint need only
set forth facts giving rise to the cause of action, but see, Fed.Rules Civ.Proc. 8(a)(1), (3), it hardly follows that a law library or other legal assistance is not essential to frame such documents. It would verge on incompetence for a lawyer to file an initial pleading without researching such issues as jurisdiction, venue, standing, exhaustion of remedies, proper parties plaintiff and defendant and types of relief available. Most importantly, of course, a lawyer must know what the law is in order to determine whether a colorable claim exists, and if so, what facts are necessary to state a cause of action.
Id. at 825, 97 S.Ct. at 1496-97 (footnote omitted).
In Walker v. Mintzes, 771 F.2d 920, 932 (6th Gir.1985), this court held that there is no “general constitutional right to some minimum amount of time in the prison law library.” Rather, a prisoner’s claim that he has been denied adequate use of the prison law library must be analyzed as a claim that he has been “denied access to the courts.” Id. (emphasis in original).
In this case, the trial judge has stated no reasons for his rejection of Childs’ claim that he has been denied access to the courts; indeed, the court did not address the subject in its written opinion at all. Defendants contend that Childs’ claim must be rejected because it is neither timely as an amendment to his complaint, see Fed.R. Civ.P. 15(a), nor a valid motion, because it was never served on the defendants. There is an obvious irony in these defenses, given the nature of Childs’ request. The claim he makes is that he has been denied access to the materials that would permit him to learn what the rules of court required of him in order to conduct his case properly. It would be harsh, to say the least, to decline to consider this request because it was procedurally incorrect, and we decline to do so.
More to the point, there is no question that the trial court had the discretion not to appoint counsel. Presumably, this decision was made after reviewing the complaint and determining that it lacked merit. Regardless of the view this court may take of the merits of Childs’ case, we cannot say that this determination was unreasonable.
Most importantly, defendants argue that Childs has not been denied access to the courts. His pleadings were poor and his research was minimal, but he did have the opportunity to go before the trial judge and be questioned quite carefully about the facts of his case. Undoubtedly, Childs might have testified more effectively if he had the assistance of counsel or the opportunity to do more extensive research. However, his claim was not dismissed because of a subtle jurisdictional defect or an easily remedied defect of pleading. The case was dismissed on the merits, because the trial judge concluded, after a hearing, that the pertinent portions of the complaint and the testimony in support of it did not suffice to state a claim under § 1983.
The hearing provided Childs with “meaningful access to the courts.” Bounds, 430 U.S. at 824, 97 S.Ct. at 1496. Although the trial court did not act to provide counsel, or to check into the prison policies that were alleged to be impeding Childs’ effort to vindicate his rights, the trial judge did give Childs his attention and the benefit of his own expertise at the hearing. At the same time, the trial court afforded Childs the opportunity to make a record for use on appeal. This procedure was appropriate under the circumstances and was not an abuse of discretion.
III.
The substantive allegations in Childs’ complaint all arose out of the July 1983 work stoppage. One set of concerns which found its way into the complaint had to do with the allegation by prison officials that Childs was the instigator of the work stoppage. The complaint alleged that this allegation was false, and that Childs had been harmed by the administrative actions taken against him in response to the false allegation. In particular, Childs complains of his transfer to the Tennessee State Prison, placement in administrative segregation, and consequent loss of prison employment and other advantages.
In the district court, then Chief Judge Morton disposed of these allegations by reference to two pertinent cases, Grubbs v. Bradley, 552 F.Supp. 1052 (M.D.Tenn.1982), and Crafton v. Luttrell, 378 F.Supp. 521 (M.D.Tenn.1974). Both of these cases were class actions brought under § 1983 by prisoners in the Tennessee State Corrections System. In Crafton, Judge Morton held that certain prison disciplinary procedures violated the prisoners’ right to due process of law. In Grubbs, Judge Morton held that certain prison conditions amounted to cruel and unusual punishment. Both opinions were accompanied by orders stating that the court would retain jurisdiction pending complete implementation of an adequate remedy.
Thus, Judge Morton considered all of Childs’ claims that were in essence objections to prison conditions to be within the scope of Grubbs. Because Judge Morton retained jurisdiction in that case, Childs was a member of the class and these claims had already been litigated on his behalf. As for the claims centered upon the false allegations of instigating the work stoppage, and the consequent deprivation of privileges, Judge Morton determined that these allegations did not state a claim under Crafton, the due process case.
In Crafton, Judge Morton had written that administrative segregation “represents a measure which may be legitimately employed by state prison authorities in exercising their governmental function of preserving order and discipline within the prison system.” 378 F.Supp. at 533. Because such segregation “constitutes a substantial loss of prisoner liberty,” however, Judge Morton required that prisoners committed to segregation “shall be afforded rights consistent with the minimum requirements of due process.” Id. at 533-534. The due process requirements established in Crafton and applicable to the administrative segregation procedure called for the prisoner to be provided written notice of charges against him within 18 hours of his segregation, an opportunity to prepare a defense, a weekly informal review of the prisoner’s case, and a monthly hearing before a review board. At the hearing held in this case, Judge Morton specifically questioned Childs to determine whether the consent decree in Crafton had been complied with in Childs’ case.
In Bills v. Henderson, 631 F.2d 1287, 1298 (6th Cir.1980), this court held that the procedural rules established pursuant to Crafton “may no longer be mandated in view of” the Supreme Court’s decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Furthermore, a more recent Supreme Court case, Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), is even more closely on point than Wolff v. McDonnell. It is Hewitt, decided in February of 1983, which supplies the most authoritative law on what process is due to a prisoner being placed in administrative segregation.
On January 15, 1985, we ordered that counsel be appointed for this appeal and that a transcript be provided to the prisoner at government expense. At the same time, we requested counsel to address the issue of whether the Tennessee Department of Corrections’ regulations establish a liberty interest regarding administrative segregation under Hewitt and, if so, whether there are any genuine issues of material fact in this case.
IV.
In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the Supreme Court construed written procedural guidelines applicable in the Pennsylvania State Prisons to create a “protected liberty interest” because the procedural guidelines “used language of an unmistakably mandatory character.” Id. at 471, 103 S.Ct. at 871. All of the parties in this case agree that the Tennessee guidelines are indistinguishable from the Pennsylvania guidelines in their use of mandatory language, and that they must be construed under Hewitt to create a liberty interest.
The issue, therefore, is whether Childs has been shown to have received the process due him under the fourteenth amendment. The Supreme Court in Hewitt considered the process due to a prisoner being placed in administrative segregation' to be fairly minimal, but defined the indicia of due process in this area somewhat differently than previous cases, such as Bills v. Henderson, 631 F.2d 1287 (6th Cir.1980), and Crafton v. Luttrell, 378 F.Supp. 521 (M.D.Tenn.1974), had done:
We think an informal, nonadversary evidentiary review is sufficient both for the decision that an inmate represents a security threat and the decision to confine an inmate to administrative segregation pending completion of an investigation into misconduct charges against him. An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.
Hewitt, 459 U.S. at 476, 103 S.Ct. at 874.
The record clearly shows that Childs received notice of the charges against him. His signature appears on the “involuntary administrative segregation placement report” that was prepared on July 14, 1983. This report gave Childs notice of the allegation that he had instigated the work stoppage.
The record also shows clearly that Childs was given an opportunity to present his views orally to prison officials within a reasonable time after his placement in segregation. Although there is no written statement by Childs in the record, and while the record does not reveal whether he was given an opportunity to present his story at the time of his initial placement, the written report filed with respect to the July 27, 1983 hearing before the administrative segregation review board, just two weeks after the segregation action, includes a space labeled “Summary of information presented by inmate.” In this space, there is a hand-written notation: “Resident requests transfer back to Ft. Pillow.”
The opportunity provided at this hearing may have been quite limited, and it may be that, for one reason or another, Childs did not at that time feel free to present all of the merits of his claim of entitlement to retransfer. Therefore, it could be said that this hearing was constitutionally deficient, even under the minimal standards set forth in Hewitt, in that it may not have been the sort of “evidentiary review” there contemplated.
Because the trial court considered matters outside the pleadings in weighing defendant’s motion to dismiss, that motion must be “treated as one for summary judgment.” Fed.R.Civ.P. 12(b):
The District Court may grant a motion for summary judgment only if it finds from the whole record before it that there are no material facts which are in dispute. See Rule 56(c), Fed.R.Civ.Pro. It may not make findings of disputed facts on a motion for summary judgment. The movant has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be considered in the light most favorable to the party opposing the motion. The movant’s papers are to be closely scrutinized while those of the opponent are to be viewed indulgently. See Smith v. Hudson, 600 F.2d 60, 63-64 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979).
Watkins v. Northwestern Ohio Tractor Pullers Association, 630 F.2d 1155, 1158 (6th Cir.1980). Childs contends that, in view of this rigorous standard, we must presume that he was given no “opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Hewitt, 459 U.S. at 476, 103 S.Ct. at 874.
We decline to conclude, simply because of the thinness of this record, that there is a genuine issue about the material fact whether Childs was afforded the kind of hearing to which he was entitled. While the record could be construed to leave open the possibility that Childs received no meaningful opportunity to be heard on the merits with regard to his placement in segregation, we are not convinced that is a reasonable reading of the record. At the close of the hearing on July 27, 1983, the board recommended that Childs’ request to be transferred back to Fort Pillow be approved. This recommendation was made despite the board’s awareness that Childs had been placed in segregation as a result of serious charges of instigating a prison rebellion. This recommendation is compelling, if circumstantial, evidence that Childs had an opportunity to present the merits of his case, and that he did so effectively.
There is, however, an additional due process issue raised by this record which has not been resolved to our satisfaction. In his complaint, Childs alleged that: “Allegations against my person were dismissed on July 15, 1983, and TSP officials continued to hold me in Administrative Involuntary Segregation ...” The written reports from this period contradict Childs’ assertion that he was cleared on July 15 of being the instigator of the work stoppage, but the reports do support the substance of his allegation, which is. that he was held in segregation long after the justification for segregation had expired.
This allegation raises concerns that the parties have not addressed in their arguments to this court. There is little difference between depriving a person of liberty without due process of law, on the one hand, and failing to restore someone’s liberty after any legal justification for its deprivation has been eliminated, on the other hand. That is why actions which affect the timing of a prisoner’s release from prison, such as the deprivation of good time credit, are subject to scrutiny under the due process clause. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974).
Childs had several hearings before prison officials prior to the September 21, 1983 report that he had been cleared of the charges against him. Although the review board recommended on July 27, 1983, that Childs be retransferred, the prison warden determined that he should be held in segregation until an independent investigation of the work stoppage could be completed. It thus appears that Childs may have been held for two months simply so that the warden could be satisfied by independent evidence that Childs’ claims of innocence were legitimate. Given the “relatively insubstantial private interest at stake and the traditionally broad discretion of prison officials,” Hewitt, 459 U.S. at 476 n. 8, 103 S.Ct. at 874 n. 8, as well as the seriousness of the allegation that an inmate was the instigator of a violent prison uprising involving hundreds of prisoners, we do not consider the warden’s two-month delay in clearing Childs to be unreasonable. Nor was the warden unjustified in retaining Childs in administrative segregation during this period.
We are troubled, however, by what happened next. Cleared of the charges which led to his transfer from Fort Pillow and his placement in segregation, Childs was kept in segregation for at least another six months. The only rationale that appears in the record for this extended detention was the warden’s decision not to transfer Childs immediately upon his release from segregation. Because Childs was unwilling to rejoin the general population at the Tennessee State Prison, and because the warden declined to transfer him, Childs was kept in segregation month after month. “The touchstone of due process is protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). It may well be, as the state has argued before this court, that the decision to transfer an inmate from one prison to another is generally left to the discretion of prison officials, and does not of itself give rise to due process protections. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The failure to retransfer the prisoner in this case, however, given that his segregation in the State Prison in the first place was a result of charges that were found to be groundless, suggests not so much an exercise of discretion as an arbitrary failure to restore the measure of liberty to which the prisoner was entitled.
We hold that a material issue of fact exists as to whether Childs was deprived of a constitutionally protected liberty interest arbitrarily by the failure of the warden of the Tennessee State Prison to transfer Childs to another institution once he had been cleared of the allegations which supported his initial placement in administrative segregation.
y.
Childs also contends that he was deprived of a liberty interest protected by the due process clause of the fourteenth amendment when prison guards fired shotguns in his direction. On July 12, 1983, Childs was standing nearby when guards fired at four prisoners who were seeking to pass through an opening in the fence that restrained a large group of rebellious prisoners. Childs admits that, while four inmates were wounded, he was not hit by any of the shots.
Childs cites a single case in support of his argument that this incident violated his “right to personal security.” Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), concerned the constitutional rights of a profoundly retarded inmate in a state institution for the mentally retarded. This inmate, who had the mental capacity of an 18-month-old child, “was injured on numerous occasions, both by his own violence and by the reactions of other residents to him.” Id. at 310, 102 S.Ct. at 2455. The Court held:
In the circumstances presented by this case, and on the basis of the record developed to date, we agree with his view and conclude that respondent’s liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.
Id. at 319, 102 S.Ct. at 2460. As for the standard to be applied in determining whether a violation of these rights had occurred, the Court held that “the Constitution only requires that the courts make certain that professional judgment was in fact exercised.” Id. at 321, 102 S.Ct. at 2461. The Court expressly noted, however, that: “Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Id. at 321-22, 102 S.Ct. at 2461.
In contrast to the pathetic plight of the retarded inmate in Youngberg, Childs’ allegation here borders on the absurd, especially considering that, as the Seventh Circuit has observed:
The due process clause provides an elastic, flexible standard which varies with the attendant circumstances. “[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961). In situations such as the present, where prison authorities are allegedly reacting to emergency situations in an effort to preserve the safety and integrity of the institution, the state’s interest in decisive action clearly outwéighs the inmates’ interest in a prior procedural safeguard. “[T]he possibility of widespread violence is a continuous condition of prison life. A good faith determination that immediate action is necessary to forestall a riot outweighs the interest in accurate determination of individual culpability before taking precautionary steps.” United States ex rel. Miller v. Twomey, supra, 479 F.2d [701] at 717 [(7th Cir.1973) ].
La Batt v. Twomey, 513 F.2d 641, 645 (7th Cir.1975). In the somewhat comparable context of allegations of excessive use of force by police officers, this court has recently stated:
Some conduct by police officers ... may be of such a magnitude that it shocks the conscience of the court. See Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Intrusions of this type violate the due process clause of the Fourteenth Amendment, and hence are actionable under Section 1983. Wilson v. Beebe, 770 F.2d 578, 582-83, & 586-87 (6th Cir.1985) (en banc); Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980). In determining if a police officer’s conduct rises to the level of a constitutional deprivation, factors such as the need for the force, the relationship between the need and the amount applied, the extent of the injury inflicted, and the motivation of the police officer in applying the force must be considered. E. g., Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Finally, the circumstances surrounding the use of force must be carefully considered, Shillingford [v. Holmes], 634 F. 2d [263] at 265 [(5th Cir. 1981)]....
Lewis v. Downs, 774 F.2d 711, 713-14 (6th Cir.1985).
Finally, in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), the Supreme Court held that a prisoner who was shot and seriously wounded by a guard could not recover on either an eighth amendment theory or a substantive due process theory in the absence of evidence suggesting “wantonness in the infliction of pain.” 475 U.S. at -, 106 S.Ct. at 1086, 89 L.Ed.2d at 262. Childs has not begun to make such a showing here. In light of the circumstances which led to the use of shotguns in this case, and in light of the fact that Childs was not struck and alleges no consequential injury, it cannot be said that his constitutional right to personal safety has been violated.
VI.
We REVERSE the dismissal of Childs’ § 1983 suit and REMAND to the district court for a determination of whether Childs’ right to the due process of law was violated by his continued detention in administrative segregation after he had been cleared of the allegations which justified his initial placement in segregation.
The proceeding must occur within a reasonable time following an inmate's transfer, taking into account the relatively insubstantial private interest at stake and the traditionally board discretion of prison officials.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
WHEELING & L. E. RY. CO. v. PITTSBURGH & W. V. RY. CO.
Circuit Court of Appeals, Sixth Circuit.
June 21, 1929.
No. 5445.
Clan Crawford and W. H. Boyd, both of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for appellant.
H. H. Hoppe, of Cleveland, Ohio (C. E. Taplin and Taplin & Fillius, all of Cleveland, Ohio, on the brief), for appellee.
Before DENISON, MOORMAN, and HICKENLOOPER, Circuit Judges.
MOORMAN, Circuit Judge.
This is an appeal from a preliminary injunction granted on the motion of Pittsburgh & West Virginia Railway Company,’ a stockholder of the Wheeling & Lake Erie Railway Company, and enjoining the latter company and its dir rectors from authorizing or permitting the company or its officers to abandon its Ontario Street passenger station in Cleveland, or from entering into any contract with the Cleveland Union Terminals Company, whereby that company would have the right to enter upon the Wheeling Company’s Ontario Street station site for the purpose of making excavations thereon or constructing thereon subways, retaining walls, piers or foundations, until a certificate of public convenience or necessity therefor should be issued by the Interstate Commerce Commission. The injunction was conditioned upon the execution by the plaintiff of a bond in favor of the defendants enjoined, to be approved by the court. The bond has been executed and is ample to protect the defendants so enjoined, hut affords no protection to the Terminals Company if the injunction was wrongfully issued.
The Cleveland Union Terminals Company was organized under authority of the Interstate Commerce Commission by the New York Central Railroad Company, the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, a subsidiary of New York Central and known as the “Big Four,” and the New York, Chicago & St. Louis Railroad Company, known as the “Nickel Plate.” These three companies own the entire capital stock of the Terminals Company. That company was organized for the purpose of constructing a union station with terminal facilities adjacent to the public square in Cleveland. It procured from the Interstate Commerce Commission a certificate of public convenience and necessity for the construction of such station and terminals according to plans which it filed with the Commission, and which included within the territory of the terminals the Ontario Street passenger station of the Wheeling Company. Under stipulations which were entered into with the Wheeling Company, that company, which at first had opposed the issuance of the certificate, withdrew its opposition thereto upon condition that the issuance thereof should not prejudice its rights under the laws of Ohio in and to its Ontario Street station. Thereafter the New York Central and the Nickel Pate, in conjunction with the Baltimore & Ohio Railroad Company, without the consent of the Commission, purchased a controlling interest in the Wheeling Company, and later, in December of 1928, the Terminals Company entered into a contract with the Wheeling Company under which it was agreed that the Wheeling Company would convey to the Terminals Company its Ontario Street station and would use the union station to be constructed by the Terminals Company, which company agreed to furnish passenger facilities for the Wheeling Company and to handle its trains into and' out of the station. Applications for permission to do the things necessary to carry out this contract are now pending before the Commission.
In anticipation of the approval of this contract by the Commission, the Terminals Company began the construction of its depot and yards, and the work progressed so far that it was economically wise for it to do certain work without delay upon the Ontario Street station site. In order to dtf this it negotiated an agreement in January of 1929 with the Wheeling Company, the signing and carrying out of which are enjoined by the order complained of. The grounds for the injunction, as set out in the plaintiffs’ bill, were that the making of the agreement would be an abandonment by the Wheeling Company of its station site in violation of the Transportation Act (section 1, par. 18, title 49, U. S. Code [49 USCA § 1, par. 18]); that it would be illegal because it had not been approved by the Public Utilities Commission of Ohio, as required by sections 504 — 2 and 504 — 3 of the General Code of Ohio; that it would be illegal for the further reason that the consent of the stockholders of the contracting parties had not been obtained thereto as required by sections 8806-8809 of the General Code of Ohio; and that it would be contrary to section 7 of the Clayton Act (section 18, tit. 15, U. S. C. [15 USCA § 18]) in that it was determined upon subsequent to the acquisition of the stock of the Wheeling Company by Baltimore & Ohio, New York Central, and Nickel Plate, which acquisition had been declared by the Interstate Commerce Commission to be unlawful, the Commission having ordered (Interstate Commerce Commission v. Baltimore & O. R. Co., 152 I. C. C. 721), the three companies mentioned to divest themselves of the stock.
It was assumed in argument that the order of injunction applied only to the proposed agreement of 1929, and it is within that limitation that we consider it. It is admitted that this agreement has neither been submitted to nor approved by the Interstate Commerce Commission. The court below issued the injunction upon the ground that the making of it by the Wheeling Company would be an abandonment of its property covered thereby within the meaning of the Transportation Act. That act provides (section 1, par. 18, tit. 49, U. S. C. [49 USCA § 1, par. 18]), that no carrier by railroad, subject to the provisions of the act “shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment.” Paragraph 20 of the same section of the act provides that any abandonment contrary to paragraph 18 “may be enjoined by any court of competent jurisdiction at the suit of the United States, the Commission, any commission or regulating body of the state or states affected, or any party in interest.”
It may well be doubted whether the Pittsburgh Company is a “party in interest,” within the meaning of this latter section, or, if so, whether upon motion of such a party, as distinguished from the United States or the other regulatory agencies therein mentioned, the provision as to the injunction is mandatory, or is merely a grant of power, to be exercised according to general equity principles. It is argued, too, that the contract, now pending before the Commission for.approval, does not disclose such an “abandonment” as requires that approval, although, to remove uncertainty, the application has been made. We pass these questions and proceed to consider whether the proposed agreement, with the work that the Terminals Company is permitted to perform thereunder, is an abandonment within the meaning of the statute in question.
The agreement provides that it shall run only until February 1, 1930. It states that the Wheeling Company is willing to permit “the temporary use of said lands for the construction of said facilities” during that time upon certain conditions and for certain considerations, and it grants to the Terminals Company the right to enter upon and use such portions of the land for excavation and construction work “as will not unreasonably interfere with the Railway Company’s use of said property, subject, however, to the approval from time to time of the general manager of the Railway Company.” The Ter- . mináis Company agrees to pay the Wheeling Company a rental of $5,145 a month from and after the execution of the agreement •until it terminates, February 1, 1930; and it is provided that, if at that time the parties •for any reason are unable to agree on terms for the further use or occupancy of the property by the Terminals Company, the rights • of that company shall cease, and all structures put upon it by the Terminals Company shall belong to the Railway Company free from any claim of the Terminals Company. The Terminals Company further agrees in such event to restore the premises to their former condition, and it is to execute a bond ■to the Railway Company in the sum of $1,-000,000 to secure the performance of these covenants.
Both parties, in. planning to enter into -this agreement, anticipated that the Interstate Commerce Commission would approve the agreement of December 1928. Both recognized, though, that sueh approval might not be obtained, and hence they provided for the restoration of the property by the Terminals Company and the relinquishment of any right or claim thereto by it under the agreement in question. This agreement provides in terms, as we have said, that the use by the Terminals Company shall not “un- • reasonably interfere with the Railway Company’s use of said property,” or cause any “interference with the ownership, possession, proper and safe operation and use or occupancy” of it by the Wheeling Company. Before it was negotiated, the Wheeling Company had discontinued using the Ontario Street station under an order of the Commission directing it to do so, because of the unsafe condition of the station. The same order authorized it to use the station of the Erie Railroad at Superior avenue, and the Terminals Company procured for it the right to operate its trains over the tracks of the Big Four and Erie Railroad into that station. The expense of this service * until the new terminals are completed is to be borne by the Terminals Company.
The Supreme Court of Ohio, in Pittsburgh & W. Va. R. R. Co. v. Public Utilities Commission of Ohio, 166 N. E. 372, not yet officially reported, has held that the contract now before the Commission is not an abandonment of the facilities of the Wheeling Company under the Ohio statutes. The court thought that what was proposed to be done under that contract was merely a substitution or improvement of service and that it should be treated as if the Wheeling Company were constructing a new passenger station or substituting a new one for the old. We are not called on to pass upon this first contract, but our views of the effect of the contract here involved in respect to the federal statute coincide with those of the Ohio court as to the first contract in respect to the state statute.
Abandonment does not mean a partial disuse with an intention to complete it upon a contingency. It means a final relinquishment or giving up without intention of resuming. That is not what this contract does. It is the purpose of the Wheeling Company, it is true, if the contract of December, 1928, is approved by the Commission, to give up the property for individual station facilities; but the mere granting of permission to the Terminals Company as is here contemplated, to do certain work that will facilitate the building of the station in the event that the contract is approved by the Commission and upon the condition that if it is not approved there will be a restoration of the property, and wdth the reservation that the work to be done shall not unreasonably interfere with the use of the property by the railroad company, is not, in our opinion, an abandonment within the meaning of the statute. The fact that the property is not and cannot be used for a passenger station at the present time does not affect the question. That condition existed and was recognized by the Commission before the agreement here involved was negotiated; and even therefore if the Terminals Company were not engaged in working on these premises the Wheeling Company could not use them for passenger purposes. We find nothing in the record to indicate that the directors of the company permitted the station to fall into disrepair for the purpose of procuring such an order from the Commission.
The same reasons that impel the f oregoing holding lead to a like conclusion as to the inapplicability of sections 504 — 2 and 504 — 3 of the General Code of Ohio, — indeed, the decision of the Supreme Court of Ohio, in Pittsburgh & W. Va. Ry. Co. v. Public Utilities Commission of Ohio, supra, is conclusive of that question. Neither are sections 8806-8809, inclusive, of the General Code of Ohio applicable. It is doubtful that those provisions apply to a terminal .company at all, but if they do they do not apply to such a contract as is here involved. Whether they apply to the earlier agreement is a question with which we are not concerned. If they do, the most that can be claimed is that that agreement can riot be made effective until the companies have secured the approval thereto of their stockholders as required by these statutes. There will be ample time for that, if and after the Commission determines that the contract may be made.
Nor is there any basis for the injunction in the Clayton Act. All the matters complained of under that act are subject to the regulation and supervision of the Interstate Commerce Commission, and by the express terms of the act no one, exeept the United States, is authorized to bring a suit in equity thereunder for injunctive relief, in respect of any matter subject to the regulation and supervision of the Commission. Section 26, tit. 15, U. S. C. (15 USCA § 26). If, however, such relief were open to a minority stockholder, it would be subject to the ordinary rules of equity, and an injunction would not be granted, except upon a balancing of relative convenience and injury. Upon that hypothesis it cannot be seriously contended that the injunction was warranted. The rec-ord shows that the work of the Terminals Company has reached such a stage at this time that it will be seriously delayed, unless it can be carried on according to a plan which requires certain work to be done upon the premises in question, and also that the holding up of this work will result in a daily loss to that company of several thousands of dollars. On the other hand, the complainant is in no danger of suffering any injury or dam- ■ age from the doing of the work. If the Commission should not give its approval to the contract of December, 1928, the property of the Wheeling Company will be restored to the condition that it was in when the work was begun. In the meantime that company is receiving more than $5,000 a month rent while the work is in progress. This, in view of other provisions of the contract, seems to be an entirely adequate rental. If the contract should be approved by the Commission, there will be an administrative determination by an expert body, entitled to the greatest weight, that the arrangement is just and reasonable. If it should not be approved as drawn, the Commission has the power either to reject it entirely or to approve it upon terms that the Commission deems fair to all parties interested, including the stockholders. The plaintiff has the right to present its views of these matters to the Commission, and, if it is dissatisfied with the decision of that tribunal, it may go further and present them to the courts. Cleveland, C., C. & St. L. R. Co. v. Jackson, 22 F.(2d) 509 (6 C. C. A.).
Wé recognize that, when the issue of a preliminary injunction rests upon the discretion of the trial judge, his exercise thereof will not usually be reviewed; but this familial' rule has no application where it is fairly apparent, as it is here, that he was chiefly moved by a view of the law with which the appellate court is unable to agree. Whether this agreement shows an abandonment within the meaning of the statute is a legal question. Louisville & N. R. Co. v. Western Union Tel. Co. (C. C. A. 6) 207 F. 1, 4, 5.
The order of injunction is accordingly vacated.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_respond1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
In re OIL SPILL BY the “AMOCO CADIZ” OFF the COAST OF FRANCE MARCH 16, 1978. AMOCO TRANSPORT COMPANY and Amoco International Oil Company, Plaintiffs-Appellees, v. BUGSIER REEDEREI AND BERGUNGS, A. G., Defendant-Appellant.
No. 80-2402.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 25, 1981.
Decided Sept. 15, 1981.
Nicholas J. Healy, Healy & Baillie, New York City, for plaintiffs-appellees.
Frank Cicero, Jr., Kirkland & Ellis, Chicago, 111., for defendant-appellant.
Before SWYGERT, Senior Circuit Judge, BAUER, Circuit Judge, and CRABB , District Judge.
At the time of oral argument, Judge Swygert was a circuit judge in active service; he assumed senior status on July 1, 1981.
The Honorable Barbara B. Crabb, Judge of the United States District Court for the Western District of Wisconsin is sitting by designation.
CRABB, District Judge.
This is an interlocutory appeal taken from one of the many cases spawned by the March 16, 1978 oil spill off the coast of France. The issue on appeal is whether the district court erred in denying the motion of defendant-appellant for a stay of proceedings pending arbitration of certain disputes between the parties. We conclude that the arbitration should proceed and, accordingly, we reverse.
Factual Background
A brief review of the events leading up to the disaster is necessary to an understanding of the claims at issue.
At about 0945 hours Greenwich Mean Time (GMT), on March 16, 1978, approximately eight miles north of Ushant Island off the French coast, the Amoco Cadiz, a crude carrier owned by plaintiff-appellee Amoco Transport, suffered a complete failure of her steering gear and began to drift, out of control, in heavy seas and strong winds. Her radio messages warning all ships to stand clear were intercepted by the Pacific, one of a number of ocean-going salvage tugs owned by defendant-appellant. The Pacific changed course immediately to come to the aid of the Cadiz and her 230,000 tons of Iranian oil. At 1128 GMT the Pacific advised the Cadiz of her change of course and offer of assistance, proposing that any assistance rendered be in accordance with Lloyd’s Standard Form of Salvage Agreement (LSA). At about the same time the master of the Pacific called Bugsier’s Hamburg office which in turn called its London agent, Hutton, with instructions to negotiate an LSA with the owners of the Cadiz. Hutton sent a telex to Amoco Transport’s agent in Chicago, Amoco International, offering Bugsier’s assistance and proposing performance under the LSA.
While Hutton was conducting trans-Atlantic negotiations with Amoco Transport in Chicago, the Pacific arrived alongside the Cadiz, again offering her services pursuant to the LSA. Although the master of the Cadiz declined to accept the LSA, the Pacific proceeded to prepare a tow line and attached its tow line to the tanker. It was not until about 1600 GMT that the Cadiz advised the Pacific that it would enter into the LSA. By this time, towing attempts had been under way for almost four hours, but the tanker’s drift could not be stopped. At 1618 GMT the Pacific’s tow line broke. At about 2055 GMT the Pacific was able to secure another line. At 2104 GMT the tanker ran aground while under tow. Finally, at 2212 GMT, the tow connection broke, the Cadiz floated free briefly, grounded again and broke apart.
On January 16, 1979, Amoco Transport Company and Amoco International Oil Company began this action against Bugsier in the Eastern District of Virginia, obtaining personal jurisdiction by maritime attachment of Bugsier’s tug Atlantic. Plaintiffs charged Bugsier with negligence, breach of an alleged warranty of seaworthiness, and false and fraudulent misrepresentations, acts, or omissions in connection with the attempted salvage of the Cadiz. Bugsier moved for dismissal on the ground of forum non conveniens or for a stay pending arbitration and, at about the same time, began arbitration proceedings in London in accordance with the LSA. Those proceedings remain pending, but have been held in abeyance until final disposition of Bugsier’s motion for a stay.
The Lloyd’s Standard Form of Salvage Agreement
The LSA entered into by the parties is a standard form of salvage agreement commonly referred to as a “no cure, no pay” contract. Paragraph 1 of the agreement provides:
The Contractor agrees to use his best endeavours to salve the _ and/or her cargo and take them into _or other place to be hereafter agreed. The services shall be rendered and accepted as salvage services upon the principle of “no cure — no pay.” In case of arbitration being claimed the Contractor’s remuneration in the event of success shall be fixed by arbitration in London in the manner hereafter prescribed: and any difference arising out of this Agreement or the operations thereunder shall be referred to arbitration in the same way. In the event of the services referred to in this Agreement or any part of such services having been already rendered at the date of this Agreement by the Contractor to the said vessel and/or her cargo it is agreed that the provisions of this Agreement shall apply to such services.
The agreement also contains provisions for security (in lieu of a maritime lien) for services rendered, for arbitration and for appeal from arbitration. Of the eighteen separate provisions of the agreement, eleven relate to arbitration or to appeal from arbitration. Paragraph 8 of the LSA lists the parties who may file claims for arbitration: (1) the owners of the ship; (2) the owners of the cargo or any part thereof; (3) the owners of any freight separately at risk or any part thereof; (4) the contractor; (5) any other person who is a party to the agreement. Corresponding to the provisions for arbitration is a stipulation of the applicability of English salvage law.
Proceedings in the Lower Court
In their complaint against Bugsier, plaintiffs-appellees alleged that in undertaking to assist the Cadiz, Bugsier owed a duty to plaintiffs-appellees to act with due diligence and to exercise reasonable skill, care and prudent seamanship, and that Bugsier failed to so act, but instead acted negligently and improperly; that Bugsier’s actions constituted willful and wanton misconduct and gross negligence; that Bugsier warranted the seaworthiness and towing capabilities of its tug and breached those warranties; that Bugsier made material misrepresentations concerning the ability of its tug to assist the Cadiz; and that Bugsier failed to exercise reasonable care to determine the truth or falsity of its representations.
The lower court held that most of these alleged breaches of duty occurred prior to any attempts to salve the Cadiz; that, although the damage occurred in the grounding and loss of cargo, the duty was breached in the undertaking itself and at the moment of the alleged misrepresentation; and that, even if other claims arose while the LSA was in effect, the earlier claims are the crux of plaintiffs-appellees claims and predominate over the others. The court concluded that the inseparability of the later claims “from those which matured previously” precluded reference of the later claims to arbitration.
In their motion seeking certification of this matter for interlocutory appeal, Bugsier asked for certification of three questions of law: (1) whether, in deciding a motion for stay pending arbitration, the court must accept as true the allegations in the complaint; (2) whether a salvor has any legal duty to the owner of a disabled tanker before the salvor acts to salvage the tanker and before a salvage agreement is made, and (3) whether a tort can mature before the alleged victim sustains any damage.
It is not clear from the certification order that the trial court viewed the particular questions posed by Bugsier as appropriate for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). It is clear that the court saw, as we do, that the overriding issue is that of the arbitrability of the claims raised against Bugsier. It is that issue to which this opinion is addressed.
For their part, plaintiffs-appellees urge affirmance of the district court’s denial of a stay on the grounds stated by the court or on two alternative grounds: first, that the LSA applies only to claims involving the salvor’s remuneration for successful salvage operations and not to tort claims, and that because this agreement does not cover tort claims, they never agreed to arbitration of such claims; second, their complaint includes claims, not yet resolved, of fraudulent inducement to enter into an arbitration agreement. Additionally, they contend that plaintiff-appellee Amoco International was not a party to the salvage agreement and therefore, cannot be bound by its terms.
OPINION
In resolving a question of arbitrability, the starting point must be the United States Arbitration Act, 9 U.S.C. § 1 et seq. This act provides that an arbitration provision in any maritime transaction or in a contract evidencing a transaction involving commerce “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract ...” (9 U.S.C. § 2); it requires the federal court to stay the trial of any action arising out of issues “referable to arbitration under an agreement in writing for such arbitration. . . . ” once the court has determined the basic question of whether the claims raised are subject to arbitration (9 U.S.C. § 3); and it provides that
If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same shall be in issue, the court shall proceed summarily to the trial thereof. (9 U.S.C. § 4)
The question of arbitrability has two parts: (1) whether the allegedly wrongful conduct is of a nature covered by the agreement and (2) whether the conduct occurred during the time period covered by the agreement.
Substantive Scope of the LSA
The district court seems to have reached the implicit conclusion that the LSA arbitration provisions extend to tort claims against the salvor, questioning only the temporal limits of the agreement. Its conclusion as to the substantive scope of the agreement is supported by the language of the contract and by English case law.
The first clause of the LSA provides for the arbitration not only of claims for remuneration arising out of successful operations, but of “any difference arising out of this Agreement or the operations thereunder. ...” (Emphasis added).
Significantly, in the leading cases of Tojo Maru [1972] A.C. 242 and The Eschersheim [1974] 2 Lloyd’s Rep. 188 (Q.B.), aff’d [1976] Lloyd’s Rep. 81 (C.A.) aff’d, 1976, 2 Lloyd’s Rep. 1 (H.L.), English courts have read the LSA to cover claims for negligence in the salvage operation. In Tojo Maru, a claim for salvage and a counterclaim for negligently-caused damage in an amount exceeding the salvage claim went to arbitration under the LSA. Subsequently, the court upheld the arbitrator’s positive award in favor of the shipowner.
In The Eschersheim, a negligence action by a shipowner arising out of the grounding of the ship on the coast of Spain and resulting loss of a cargo of insecticide, the court required the owner to proceed to arbitration, holding that “On the true construction of the Lloyd’s Salvage agreement not only claims by the salvors for salvage remuneration but also claims by owners of salved property for negligence in salvage operations were to be referred to arbitration.”
Plaintiffs-appellees resist this interpretation of the LSA. They contend that, as a general rule, tort claims are not arbitrable under a contract arbitration clause unless there is a specific provision to that effect. For this contention, they cite Old Dutch Farms, Inc. v. Milk Drivers & Dairy Emp. Union, 359 F.2d 598 (2d Cir. 1966), a case arising out of an employer-union dispute; specifically, efforts by a union to induce work stoppages by employees of a neutral supplier of Old Dutch in an effort to persuade the supplier to cease doing business with Old Dutch. The employer sued the union under 29 U.S.C. § 187 (§ 303 of the Labor Management Relations Act) for damages for business injuries incurred as a result of unlawful union activity; the union sought a stay pending arbitration. Finding that resolution of the employer’s claim raised no issue requiring construction of the collective bargaining agreement and that there was nothing in the agreement to suggest that the parties had contemplated arbitration of allegedly unlawful labor practices, the court of appeals held that the employer could not be required to submit its damage claim to arbitration.
Old Dutch does not compel the conclusion that any claim founded in tort is beyond the scope of an arbitration agreement. Whether a particular claim is arbitrable depends not upon the characterization of the claim, but upon the relationship of the claim to the subject matter of the arbitration clause. Were the rule otherwise, a party could frustrate any agreement to arbitrate simply by the manner in which it framed its claims. See, e. g., Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158 (2d Cir. 1967), in which the court held that tort claims arising out of or related to a breach of contract were arbitrable under an arbitration provision covering “any dispute or difference arising out of or relating to this contract,” observing that the plaintiff could not “avoid the language of the arbitration clause by casting its complaint in tort.” Id. at 159.
Unlike the unfair labor practice claims in Old Dutch, the claims of misrepresentation and breach of duty are germane to the subject matter of the arbitration clause. The claims clearly concern “difference[s] arising out of this Agreement or the operations thereunder” and they can be determined only by evaluating the manner in which Bugsier’s tug performed the salvage operation, taking into consideration such matters as the prevailing weather conditions, the situation of the Cadiz, the availability of other salvage vessels, the resources of the Pacific and the skill of her crew.
Plaintiffs-appellees’ assertion of fraudulent inducement requires only brief comment because the matter was not pursued in the district court despite the specific provisions for summary disposition of such a claim contained in 9 U.S.C. § 4. Apparently, the district judge saw no merit in such a claim; he was careful to note that the claims raised by plaintiffs-appellees were not based upon fraudulent inducement. Because a claim of fraud in the inducement of a contract is a matter for arbitration, Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), plaintiffs-appellees’ assertion has cogency only if we accept their contention that the LSA is exclusively an agreement to arbitrate. According to Prima, it is only claims of fraud in the inducement of an agreement to arbitrate which raise an issue for the court to resolve. Id. at 403-404, 87 S.Ct. at 1805-1806.
We do not accept plaintiffs-appellees’ characterization of the LSA. As important as the LSA’s arbitration provisions are, they are not the exclusive subject matter of the agreement. Its scope extends to the entirety of the relationship between salvor and distressed vessel: the authority of the master to enter into an agreement, the nature of the salvage undertaking, the use of the distressed vessel’s equipment, the docking of the salved vessel, the arrangements for security after a successful operation, and the method by which the salvage award is to be determined.
Temporal Scope of the LSA
The district court found that the claims against Bugsier were outside the scope of the LSA because they “matured” before the Pacific undertook any salvage activity. The court seems to have assumed that the claims were ones on which plaintiffs-appellees could have sued Bugsier in the absence of an agreement. While this may be so, it is not determinative of the issue central to this dispute: the scope of the arbitration clause. The question is whether the arbitration clause of the LSA covers the particular claims made by plaintiffs-appellees regardless of when the torts may have been committed or when Bugsier’s duty to plaintiffs-appellees arose.
It is our view that the agreement is intended to and does cover the alleged breaches of duty and misrepresentation, given the close relationship of those torts to the subject matter of the LSA and given, also, the ease with which such claims can be invoked against a salvor in circumstances such as those present in this case. We conclude that the tort claims raised by plaintiffs-appellees must be submitted to arbitration as coming under Clause 1 of the LSA, whether the torts are alleged to have been committed before or after the commencement of any salvage activity or before or after the execution of the LSA.
Our finding in favor of arbitration is bolstered by the strong public policy favoring arbitration of maritime and commercial disputes which is embodied in the Arbitration Act and the special deference owed to forum-selection clauses in international contracts. See, e. g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).
Arbitration of the Amoco International Claims
Although plaintiff-appellee Amoco International (International) was joined as plaintiff with Amoco Transport (Transport) in the bringing of this complaint, it contends now that its claims against Bugsier are independent of those raised by Transport and that these independent claims give it a separate basis on which to assert a right to a judicial forum stemming from the fact that International never entered into any agreement with Bugsier and has never consented to have its disputes resolved by arbitration.
This argument has little force. By its own allegations, International’s stake in this controversy is as Transport’s agent. Having alleged an agency relationship as a basis for its standing in the suit, it cannot slough off that relationship at will. It would advance neither judicial economy nor the purposes of the federal arbitration act to permit International to assert in a judicial forum claims grounded upon its alleged relationship to Transport and to allow it to disavow the relationship for purposes of arbitration, or to allow Transport to defeat the effect of an arbitration agreement by joining a nonsignatory as a party-plaintiff in its complaint. Cf. Tepper Realty Co. v. Mosaic Tile Co., 259 F.Supp. 688 (S.D.N.Y.1966). We conclude that both plaintiffs-appellees are bound by the arbitration agreement entered into by Transport and that their claims against Bugsier should proceed to arbitration. Accordingly, the judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
. All of the cases have been consolidated in the Northern District of Illinois for pretrial proceedings upon transfer by the Judicial Panel on Multi-District Litigation.
. There is no dispute among the parties as to these facts. For this reason, we see no need to discuss in any detail Bugsier’s claim that the district court erred in stating that it was accepting as true ail of the allegations of plaintiffs-appellees’ complaint for the purpose of deciding Bugsier’s motion for stay pending arbitration. The determination of arbitrability in this case turns upon the question of whether the plaintiffs-appellees’ legal claims are within the scope of the salvage agreement, not upon the resolution of any disputed issue of fact.
. The timeliness of the demand for arbitration is not in dispute.
. Plaintiffs-appellees contend that Bugsier was negligent in the following respects:
(a) Defendant Bugsier failed to ascertain all the conditions and circumstances affecting the tug Pacific’s proposed attempt to tow the Amoco Cadiz.
(b) Defendant Bugsier failed to prepare an adequate and proper towage plan.
(c) Defendant Bugsier knew or should have known that the Pacific and its equipment were unseaworthy and unsuitable for towing the Amoco Cadiz.
(d) Defendant Bugsier knew or should have known that the master, officers and crew of the tug Pacific were incompetent and incapable of performing the proposed towage of the Amoco Cadiz.
(e) Upon realizing its inability to tow the Amoco Cadiz, defendant Bugsier failed to notify the master of the Amoco Cadiz of said inability to tow and failed to seek prompt additional assistance.
(f) Defendant Bugsier failed to maintain an adequate radio watch and failed to respond to requests for information from the master of the Amoco Cadiz.
(g) Defendant Bugsier knew or should have known that the towing chain used on the first attempted tow was defective.
(h) On the second attempt at towing, defendant Bugsier failed to tow the Amoco Cadiz in the proper direction, and instead pulled the ship onto the rocks where it grounded.
. It is not essential that we identify with certainty the precise questions certified by the district court since the nature and scope of our review are not determined by that certification. Rather, we are free to consider “ ‘such questions as are basic to and underlie the order supporting the appeal.’ 9 Moore’s Federal Practice 110.25[1], p. 270.” Helene Curtis Ind. v. Church & Dwight Co., 560 F.2d 1325, 1335 (7th Cir. 1977) cert. denied, 434 U.S. 1070, 98 S.Ct. 1252, 55 L.Ed.2d 772. See also, Nuclear Engineering Co. v. Scott, 660 F.2d 241 at 246 (7th Cir. 1981).
. The district court found that Bugsier’s duties to plaintiffs-appellees arose and were breached prior to any activity undertaken under the contract; however, it noted that “It is possible that certain tort claims may have arisen while the contract was in effect, but these claims are inseparable from those which matured previously.”
. See also, D. R. Thomas, Lloyd’s Standard Form of Salvage Agreement — A Descriptive and Analytical Scrutiny, 2 L.M.C.L.Q. 276, 277-278 (1978).
. A discussion of the duty and standard of care owed by a salvor may be found in D. R. Thomas, Salvorial Negligence and Its Consequences, 2 L.M.C.L.Q. 167 (1977).
. In its opinion the district court held that the alleged torts of misrepresentation and breach of duty “matured” at the time the acts constituting the torts are alleged to have been committed: that is, prior to the commencement of the salvage activity. By "matured,” the court thus meant something distinct from consummated, acknowledging that no damages would have occurred at that point. As Bugsier points out, ordinarily a tort of any kind does not give rise to a cause of action unless and until the plaintiff has suffered harm of a kind legally compensable by damages. Because the damages incurred by plaintiffs-appellees could not be determined without an examination of the entire operation and its aftermath, we find unconvincing the district court’s attempt to consider the asserted tort claims as separate from the salvage operation which is the subject matter of LSA.
. The district court found that the agreement was in effect at 1800 GMT, which was the time at which Amoco International confirmed the agreement in a telex to Bugsier’s London agent. However, as all parties agree, the Cadiz had advised the Pacific of its acceptance of the LSA at 1600 GMT. Although the point is not critical to the disposition of this appeal, we conclude that the agreement became effective at the earlier time.
. See, e. g., Paragraph 3, plaintiffs’ amended complaint.
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:
|
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.
Charles McGILL, Appellant, v. UNITED STATES of America, Appellee. Walter M. HINTON, Appellant, v. UNITED STATES of America, Appellee.
Nos. 18828, 18829.
United States Court of Appeals District of Columbia Circuit.
Argued April 29, 1965.
Decided June 29, 1965.
Mr. Warren E. Baker, Washington, D. C. (appointed by this court) for appellant in No. 18828.
Mr. Robert B. Frank, New York City (appointed by this court) for appellant in No. 18829.
Mr. Frank Q. Nebeker, Asst. U. S. Atty. with whom Messrs. David C. Acheson, U. S. Atty., Robert X. Perry and Martin R. Hoffmann, Asst. U. S. Attys., were on the brief, for appellee.
Before Wilbur K. Miller, Senior Circuit Judge, and Fahy and Leventhal, Circuit Judges.
LEVENTHAL, Circuit judge.
Following the return of an indictment against them on April 27, 1964, appellants, McGill and Hinton, together with a third defendant Barnhart, were arraigned in open court on May 1, 1964. They were charged on one count with robbery, and on another count with assault with intent to rob (based on separate complaints). The case came to trial on June 9, 1964. On June 15, 1964, the jury returned its verdict, finding McGill guilty of simple assault and assault with intent to commit robbery and Hinton guilty of robbery and of simple assault. Barnhart was acquitted on all counts. McGill and Hinton appealed from their conviction proceeding in forma pauperis.
I Permissibility of Accepting Plea of Not Guilty Prior to Assignment of Counsel.
Appellants contend that they have been denied the constitutional right of an accused under the Sixth Amendment “to have the Assistance of Counsel for his defence.” This claim is based on the fact that on May 1, 1964, prior to appointment or assignment of counsel, they were arraigned before the Chief Judge of the District Court, who accepted from each a plea of not guilty.
The docket sheet shows that on May 1, 1964, the Chief Judge referred Hinton’s case and Barnhart’s case for appointment of counsel. While no such indication appears on the record with respect to Mc-Gill’s case, separate counsel were in fact appointed by the Court for each defendant on May 6,1964.
The contention is that the Sixth Amendment requires the protection of counsel at “every step” in the proceedings. This is the language of Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Furthermore, Rule 44 of the Federal Rules of Criminal Procedure provides that when the accused is without counsel, the Court shall “assign counsel to represent him at every stage of the proceeding.” The counsel appointed by this court argue to us that surely the arraignment is a “step” or “stage” in the criminal proceeding and that counsel is accordingly required. Cf. Evans v. Rives, 75 U.S.App.D.C. 242, 250, 126 F.2d 633, 641 (1942).
Counsel concede that they seek reconsideration of our ruling in Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949). See also United States ex rel. Cooper v. Reincke, 333 F.2d 608, 612 (2d Cir. 1964). The case involves a question of constitutional protection. The decision involved, rendered fifteen years ago, lies in a domain of jurisprudence which has been the subject of fresh consideration by the courts. The scope of constitutional requirements has been redefined in the light of changing conditions, and the increasing awareness of the underlying needs of a democratic society devoted to the pursuit of equal justice for all under law. Accordingly, we have taken the point under advisement for fresh consideration. See Ricks v. United States, 118 U.S.App.D.C. 216, 218-219, note 2, 334 F.2d 964, 966-967 (1964).
Upon due reflection we see no basis for concluding that the Constitution requires the presence or assignment of counsel at a point when and where there is no reasonable possibility of prejudice to the rights or position of an accused, as in these cases.
The general language in Johnson v. Zerbst and Rule 44 must be read in the light of their fundamental purpose to provide the guiding hand of counsel at every step where an accused who is without counsel may be prejudiced. The taking of appellants’ plea of not guilty on arraignment stands on an entirely different footing from the taking of a plea of guilty, which manifestly involves a possibility of such prejudice and hence cannot be accomplished prior to assignment of counsel. Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Evans v. Rives, supra.
Appellants’ contention is developed in conceptual terms. The exaltation of abstraction above reality should not be condoned for the purpose of denying constitutional rights and should not be indulged for the purpose of creating constitutional rights. Counsel say that where the constitutional rights of an accused are involved it is not necessary to make a showing of actual prejudice. But before the court concludes that there is a constitutional right it must at least determine that the accused has been not necessarily prejudiced in fact, but at least exposed to a reasonable possibility of prejudice in fact.
Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) is invoked by appellants. That opinion cannot fairly be taken as a decision or indication that counsel is required in the Federal courts upon a plea of not guilty. In that case the Supreme Court held that the Constitution required Alabama to provide counsel to accused at time of arraignment because of the necessity under Alabama law for asserting certain defenses at time of arraignment. Accordingly, the Supreme Court stated (p. 54, 82 S.Ct. p. 159) that in Alabama “[Arraignment] is a critical stage in a criminal proceeding. * * * Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.”
In these cases, however, the accused were not subject to the loss of defenses because of lack of counsel at the time of the not guilty pleas. Counsel suggested there is the possibility of prejudice inherent in the provisions of Rule 12 of the Federal Rules of Criminal Procedure concerning motions asserting defenses and objections based on defects in the institution of the prosecution or in the indictment or information. Rule 12(b) (3) provides: “The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter.” The possibility of prejudice is asserted to derive from the possibility that the court may not permit such motion to be entered after the plea.
It has always been the lore, and we hereby expressly declare it to be the law, of this jurisdiction that the defendant has an absolute right to consideration on the merits of objections encompassed by Rule 12, provided the motion be made within a reasonable time after the appointment of counsel, and his motion is in no way to be subject to prejudice because the plea of not guilty was taken prior to the appointment of counsel. If necessary to avoid possibility of prejudice, for some reason which we ■cannot anticipate, a defendant should be rearraigned.
In Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894, decided October 29, 1964, we held it requisite that accused be affirmatively advised that indigents are entitled to assignment of counsel without cost before United States commissioners in the District of Columbia may proceed with the preliminary examination. The court there discussed not only the Federal Rules of Criminal Procedure but also the Legal Aid Act, providing that the courts “will make every reasonable effort to provide assignment of counsel as early in the proceeding .as practicable.” 2 D.C.Code sec. 2202.
The District of Columbia is unique in the lead it has taken in quest •of equal justice for all. As noted in Blue, this is due “in large part to an enlightened bar which has shouldered a truly professional responsibility of staggering scope.” Our courts and bar have been in the forefront of this effort, and it is a •front that is ever moving forward. Administration is under constant study in ■quest of improvement. The Blue case itself should substantially reduce the number of defendants without counsel, retained or assigned, at time of arraignment. The administration of the Lega* Aid Act and of the Criminal Justice Act provide continuing opportunities to the bench and bar to improve the administration of criminal justice and to enhance the effective representation of the accused in all ways right and proper. Without presuming in any way to speculate on the improvements that may lie ahead, it suffices here to say that the accused have not presented cause for reversal in these cases.
II Alleged Failure to Permit Defendant’s Retainer of Counsel of His Choice.
Another Sixth Amendment question is raised by McGill’s contention that his right to the assistance of counsel was violated when the Court summarily denied his pro se motion to dismiss appointed counsel, and when he was subsequently compelled to go to trial with court appointed counsel.
A handwritten letter signed by McGill was received by Chief Judge McGuire on June 5, 1964, four days before the beginning of the trial. The letter is short and is quoted as written:
Charles McGill
200 19th Street, S. E.
Washington, D. C.
Chief Justice McGuire
United States District Court
Washington 1, D. C.
The Most Honorable Judge McGuire
This letter in reference to criminal case No. 367-64 [238 F.Supp. 230], I the defendant, Charles McGill would like to notify the court at this time that I am able to afford my own counselor, and would like for the legal aid counselor dismiss. I also would like for the court to reduces my bond from $10,000 to a reasonable amount. I hope the court will consider this, and pray that the court will take this under advisement.
Respectfully yours
/s/ Charles McGill
Charles McGill # 141891
At the foot of the letter, Chief Judge McGuire noted “Denied” and subscribed his signature and the date, 6/5/64.
Aside from what may be inferred from this letter, the record is void of any indication whether or why McGill was dissatisfied with his court appointed counsel. In his notice of appeal, dated July 23, 1964, he claimed no error in denial of his motion to have his attorney relieved. Similarly, no allegation is made and nothing in the record suggests that Mc-Gill was inadequately represented at the 5-day trial, or that he wished to forgo the assistance of counsel.
We presume that in ordinary circumstances an accused who finds that funds have become available may, for reasons sufficient unto him, conclude that he prefers to have his own paid counsel, without necessarily claiming that appointed counsel is inadequate. Here, however, his request was made at a late date, only some four days in advance of the date set for trial. He did not say whom he would prefer to represent him. His letter gave no indication or assurance that granting his request could ^ be accomplished without delay of trial date. No other attorney made an appearance or offer of availability in McGill’s behalf.
Under the circumstances this brief request, without any explanation of why the accused wished to remove his counsel or how he wished to proceed thereafter, was insufficient to put off the trial or effect a change in his representation. There is a marked distinction between this case and United States v. Plattner, 330 F.2d 271 (2d Cir. 1964), upon which McGill relies. Plattner acted promptly in asking the court to relieve assigned counsel and to allow him to act pro se. Moreover, since Plattner was necessarily present in any event, he suggested no delay in seeking to come forward to represent himself.
McGill, having been arrested on January 23, 1964, had ample time to secure the services of an attorney of his own choice. There is no indication in the record nor has any suggestion been made that McGill was in any way impeded in seeking to retain counsel, or that he wished to waive his right to the assistance of counsel and to proceed pro se. Counsel appointed by this court allude in passing to the fact that the record before us does not contain an affidavit of McGill in the District Court attesting to his indigence. The point is without materiality when the available files are examined.
It was not claimed that McGill did not, at least at the time his counsel was appointed, desire the help of such counsel. If anything, the District Judge is to be commended, not censured, for providing McGill with appointed counsel even though the formal paper record was not airtight. We see no prejudice or denial of substantial rights.
Ill The Reasonable Doubt Charge
Appellants also contend that the passage of the charge relating to definition of reasonable doubt, set out in the margin, erroneously departed from the definition approved by this court.
It is agreed by counsel for both the accused and the Government that the charge was correct insofar as it instructed the jury that the proof would not be beyond a reasonable doubt, and there would exist a reasonable doubt, and not a mere vague, speculative or obscure doubt, if it were “such a doubt as would cause you to hesitate to act upon it in the graver and more important transactions of life.” That is essentially the language of Justice Vinson, later Chief Justice of the United States, in Bishop v. United States, 71 App.D.C. 132, 138, 107 F.2d 297, 303 (1939), cited with approval in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). As he indicates, the time used to consider the evidence does not signify hesitation to act after consideration of the evidence. See also Holt v. United States, 218 U.S. 245, 254, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).
Appellants say in effect that the charge should have stopped there and that error was inserted when the judge charged that “proof beyond a reasonable doubt is such proof as will result in an abiding conviction of the defendants’ guilt on your part, such a conviction as you would be willing to act upon in the more weighty and important matters pertaining to your own affairs.” See Scurry v. United States, 468 U.S.App.D.C. -, 347 F.2d 468 (decided April 15, 1965), and cases cited therein.
Since persons may be willing, indeed required, to act on important matters in their lives notwithstanding the most profound doubts and painful hesitation, these two portions of the charge, considered seriatim, may generate confusion, albeit the claim of confusion here falls short of the confusion presented by the Holland charge, where the Supreme Court affirmed.
The Government supports the charge as a conscientious effort by the trial judge to explain the matter in two ways — first telling the jury affirmatively what a reasonable doubt is, i. e. what negates proof beyond a reasonable doubt, and then telling them negatively what is not a reasonable doubt, i. e. what constitutes proof beyond a reasonable doubt. The Government further argues that the two parts of the charge are neither inconsistent nor productive of confusion since the latter part of the charge obviously carries with it the analysis contained in the earlier part containing the definition of reasonable doubt in terms of causing hesitation to act thereon in the more important transactions of life. The Government asks that the court consider its contention so as to avoid precipitate and unnecessary revision of instructions that have worked well over time.
This case, like Scurry, is readily disposed of on the ground that counsel did not take exception to the charge when given, and hence the judgment must be affirmed.
We are dealing here with a key portion of the charge, a passage likely to impress itself deeply on the jury to the undoubted advantage of the accused, and to resonate in the jury room as a standard of their function and responsibility. But the standard underlying the resonance cannot be defined objectively like that of a tuning fork providing absolute pitch. The standard of mental convincement of a jury may only be approached with words groping to express what is nearly indefinable. Some day perhaps the relevant concepts may be given a quantitative reference, perhaps in terms of probability,® but meanwhile, we must communicate with words, limited though they may be, for the judge to impress upon a jury the awesome task that is theirs.
Possibly the problem can be approached by confining instructions in all cases to laconic and approved phraseology. Yet defense counsel may well prefer the emphasis bestowed by repetitions of references to reasonable doubt, notwithstanding the Supreme Court’s comment that judicial attempts to explain and elaborate on the term reasonable doubt “do not usually result in making it any clearer to the jury.” Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1880); Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). In the absence of a set liturgy there is always the risk that subsequent logical parsing, perhaps by new counsel, may uncover possible confusions and misapprehensions in the printed record that were not fairly present in the aura of the court room. The old saw tells us that it is particularly when there is little to argue on the facts that a lawyer searches for points on the law. The sport of syntax should not be indulged when trial counsel did not make timely objection except in a clear case of prejudice. No such prejudice has been shown here.
At this trial neither counsel nor the judge had the benefit of the storm signals flagged by this court for the traditional reasonable doubt charge. In the future a trial judge who uses the “abiding conviction” phrase should, and on request would be required to, formulate the charge so as to clarify that he is referring to an abiding conviction of guilt which would cause reasonable men to act on the more weighty and important matters of their own affairs without hesitation continuing beyond the time required for consideration of the evidence. The Government would coordinate the two portions of the charge through implication of such a connecting link, but the defendant is entitled to the clarification of a link that is express and not merely implied.
The foregoing points suggest that counsel appointed by this court have left no stone unturned. That is their right and their duty in behalf of their indigent clients and the court welcomes their prod leading us to plumb deep before we announce that the judgments are
Affirmed.
WILBUR K. MILLER, Senior Circuit Judge, concurs in the result.
. We have studied footnote 4 on p. 54 of 368 U.S., p. 158 of 82 S.Ct. It indicates that some states which hold “arraignment is the first step in a trial” consider the accused entitled to an attorney at arraignment. The footnote also observes that “[u]nder federal law an arraignment is a sine Qua non to the trial itself.” That does not make the arraignment any more than the indictment or information, a part of the trial. Such concepts cannot serve as substitutes for consideration of the real question of the possibility of prejudice, though they may tip the scales in case of doubt as to possibility of prejudice.
. A significant aspect of early appointment of counsel is the stimulation of early investigative work. This is not impeded by proceeding with arraignment where counsel have not yet been assigned assuming appointment as promptly as practicable thereafter, as in this case.
. It appears on full examination that Mc-Gill did file an affidavit in support of an application to proceed without prepayment of costs. The affidavit was signed and sworn to on April 20, 1964, and filed the next day. On that day the legal aid attorney who represented McGill at the trial was appointed. The affidavit and order of appointment are found in the jacket of criminal case number 287-64 to which several references are made at pages 2 and 3 of the brief for McGill. The indictment in that case, except that it makes no mention of Barnhart, is identical with the April 27, 1964, indictment pursuant to which McGill and Hinton were convicted in the case here on appeal.
. The trial judge instructed the jury as follows:
Proof beyond a reasonable doubt does not mean proof beyond all doubt whatsoever. It does mean proof to a moral certainty and not necessarily proof to an absolute or mathematical certainty. A reasonable doubt is not a vague, speculative or obscure doubt. Rather, it is such a doubt as would cause you to hestitate to act upon it in the graver and more important transactions of life.
If, after an impartial consideration of all the evidence you can say to yourselves that you are not satisfied of the defendants’ guilt, then you have a reasonable doubt. Unless there is substantial evidence of facts which exclude every reasonable theory but that of guilt, your verdict must be not guilty.
In other words, to find the defendants guilty, any reasonable theory of innocence must be excluded by the facts. But, on the other hand, if after such impartial consideration of all the evidence you can truthfully and candidly say to yourselves that you have an abiding conviction of the defendants’ guilt, such as you would be willing to act upon in the more weighty and important matters pertaining to your own affairs, then you have no reasonable doubt.
In other words, proof beyond a reasonable doubt is such proof as will result in an abiding conviction of the defendants’ guilt on your part, such a conviction as you would be willing to act upon in the more weighty and important matters pertaining to your own affairs.
. Justice Vinson said: “Reasonable doubt is a doubt arising from the evidence, or from a lack of evidence, after consideration of all the evidence. It is not a vague, speculative, imaginary something, but just such a doubt as would cause reasonable men to hestitate to act upon it in matters of importance to themselves.”
Compare the Manual of Uniform Jury Instructions in Federal Criminal Cases, prepared by a Committee of the Seventh Circuit Judicial Conference, which recommends use of the following for the charge on reasonable doubt, see 33 F.R.D. 523, 567 (1963):
“6.01-3. Reasonable Doubt. A reasonable doubt means a doubt that is based on reason and must be substantial rather than speculative. It must be sufficient to cause a reasonably prudent person to hesitate to act in the more important affairs of his life.”
. Some kind of quantitative reference might well be more meaningful for an charge that they should acquit unless their increasingly computer-oriented society. Even today, while it would not be seemly to introduce such a note in a solemn judicial process, it may well be that many jurors would be more enlightened by a charge that they should acquit unless their conviction was so strong they’d be willing to give 10-to-l odds they were right.
In the last analysis, however, any quantitative approach would probably leave a crucial middle ground to be resolved in fundamental conceptions expressible only in words. Compare the effort of Judge Learned Hand to quantify the concept of “monopoly” in United States v. Aluminum Corp. of America, 148 F.2d 416, 423-424 (2d Cir. 1945).
. It is at least interesting to note that on an occasion when Congress revised a statute in order to reflect the essence of the reasonable doubt standard, it did this through a statutory requirement of “clear proof.” See United Brotherhood of Carpenters and Joiners v. United States, 330 U.S. 395, 406, 67 S.Ct. 775, 91 L.Ed. 973 (1947), discussing sec. 6 of the Norris-LaGuardia Act, 47 Stat. 70, 71.
. Compare the Manual of Uniform Instructions evolved in the Seventh Circuit, cited in footnote 5. This is a guide, not a requirement.
. The case was tried in June 1964, prior to our decision in Jones v. United States, 119 U.S.App.D.C. 213, 338 F.2d 553, 555 (1964).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_appel1_1_4
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "agriculture". Your task is to determine what subcategory of business best describes this litigant.
FREEMAN v. SMITH.
No. 6923.
Circuit Court of Appeals, Ninth Circuit.
Dec. 12, 1932.
H. L. Faulkner, of Juneau, Alaska, and Lund & Lund, of Seattle, Wash., for appellant.
John Rustgard, Atty. Gen., of Alaska, for appellee.
Pillsbury, Madison & Sutro, F. D. Madison and L. B. Groezinger, all of San Francisco, Cal., amici curias.
Before WILBUR and SAWTELLE, Circuit Judges, and CAYANAII, District Judge.
WILBUR, Circuit Judge.
This is a second appeal in this case. The former one was from a decree of dismissal after the court had sustained a demurrer to the bill of complaint based upon the ground that the facts alleged did not state a cause of action. Freeman v. Smith, 44 F.(2d) 703, 704. After the ease had been remanded to the lower court, the defendant, Smith, treasurer of the territory of Alaska, filed an answer denying the allegation of the bill that the average catch of salmon for each year by members of the trolling fleet did not exceed $500 and alleging “that trailers who, during the entire season trolled for salmon in the territorial waters of Alaska, caught during each such seasons an average of more than $3,000 worth of salmon in such waters over and above expenses of operation,” and alleging “that an experienced trailer devoting his time to trolling for salmon within the territorial waters of Alaska, will each season earn not less than $3,000 over and above expenses of operation.” Evidence was adduced upon this issue and the trial court rendered a decree denying the plaintiff any relief. It appears from the opinion of the trial court, which is incorporated in the transcript, that the court based its conclusion upon the inability of the plaintiff to prove the average annual earnings of those fishermen who trolled in Alaskan waters. Eight or ten fishermen testified that their average net earnings as salmon trailers had been approximately $500 per annum, or less. The appellee introduced evidence that certain fishermen had made more than $500 per annum; one of the defendant’s witnesses testified “that approximately he made something like around $1,000 a year above expenses; that tjie average for the trolling fleet would be below this average.”
• It is argued .by the app ellee that the decision of this court upon the former appeal is no longer controlling in that there was a failure to prove the above mentioned allegation of the bill which had been admitted on the former appeal. The appellee, therefore, reargues the questions which were argued and submitted on the previous hearing. The basic question presented on the former appeal was the effect of the Act of Congress adopted June 6, 1924 (43 Stat. 464 [48 USCA § 221 et seq.] ).upon the power of a territorial Legislature by its act of 1929 (Session Laws of Alaska, 1929,' c. 96, p. 192), to impose a fishing license tax of $250 upon all persons resident or nonresident who had not resided in the territory of Alaska for one year previous to their application for the license to troll for fish, while at the same time imposing a tax’ of only $1 for the same fishing privilege upon residents of Alaska who had so resided in the territory for a year or more. Upon this question we held that the Act of Congress of June 6, 1924, above referred to (43 Stat. 464), granted or reserved the right to all citizens of the United States to fish within areas where such fishing was not prohibited by regulation adopted by the Secretary of Commerce. This decision was based upon the proviso contained in section 1 of the act (48 USCA § 222) which is as follows: “Provided, That every such regulation made by the Secretary of. Commerce shall be of general application within the particular area to which it applies, and that no exclusive or several right of. fishery shall be granted therein, nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce.”
We quote from our opinion, written by Judge Rudkin on the former appeal, as follows : “It will thus be seen that the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska, where fishing is permitted by the Secretary of Commerce, is guaranteed to every citizen of the 'United States without reservation, whether he be a resident of Alaska or not; and the right so granted cannot be impaired or destroyed by the legislative assembly of the territory. If it can, the grant is an idle and empty one at best. Nor is the right thus conferred in anywise impaired by the last section of the act, which provides in general terms that nothing therein contained shall abrogate or curtail the powers granted the territorial Legislature to impose taxes or licenses nor limit or curtail any powers granted the territorial Legislature by the Organic Act.”
Further, from our opinion: “The naked power to impose taxes and licenses, or to make reasonable discrimination between residents and nonresidents, is not involved.”
Appellee on this appeal attacks the conclusion reached on the former appeal and argues that as the territorial Legislature had power to impose the taxes, fix license fees, the question of whether or not such fees are reasonable cannot be considered by a court. This contention is based upon section 8 of the Act of June 6, 1924 (48 USCA § 228), which expressly provides that nothing contained in the act should deprive the Alaskan Legislature of power to levy taxes and license fees and that nothing in the act contained should restrict the legislative power conferred on it by the Organic Act of .1912. The Organic Act of 1912 (section 3, 37 Stat. 512 [48 USCA § 24]), as we have seen, prohibited the territorial Legislature from later altering, amending, or modifying or repealing laws relating to game and fishing in Alaska. Auk Bay Salmon Canning Co. v. U. S. (C. C. A.) 300 F. 907. This power was reserved to Congress. The exercise of that right by Congress in subsequent legislation could not have the effect of altering or modifying the Organic Act for the reason that by the terms of the Organic Act itself this power was reserved to Congress.» The exercise of that right by Congress of course would not change or modify the powers of the territorial Legislature which was denied that right by the Organic Act. Nor would the fact that the Congress granted the right to all citizens of the United States to fish in the territorial waters of Alaska where fishing was allowed by regulations of the Secretary of Commerce alter or amend the right of the territorial Legislature to levy taxes or license fees. That power when exercised by the territorial Legislature was necessarily by the Organic Act itself so limited that it could not be used to nullify an act of Congress granting fishing rights. Consequently it makes no difference whether the right of a citizen of the United States to fish in Alaskan waters was granted before or after the Organic Act. In either event the right of taxation granted to the territorial Legislature could not be so unreasonably exercised as to deprive a citizen of the United States of a right granted by Congress. Although such rights were subject to reasonable taxation the power of taxation could not he used to deprive a citizen of a right granted by Congress nor to unreasonably restrict that right. This much we held, in effect, on the former appeal where section 8, supra, was construed. In that regard we are not only bound by our previous decásion which has become the law of the case [Roberts v. Cooper, 20 How. (61 U. S.) 467, 15 L. Ed. 969; Montana Mining Co. v. St. Louis Mining Co. (C. C. A. 9), 147 F. 897, 903; United States v. Axman (C. C. A. 9) 193 F. 644, 649; Bodkin v. Edwards (C. C. A. 9) 265 F. 621], but wo reaffirm that conclusion.
The question then arises, Is the license tax in question an unreasonable tax ? On the previous appeal we concluded that the exaction of 50 per cent, of the not receipts of the average troller as a license fee was unreasonable and violative of the right granted by Congress to fish in Alaskan waters. We go a step further on the present appeal and hold that the imposition of a license fee of $250 upon all fishermen who* fish by trolling in Alaskan waters, regardless of whether they fish for one hour or one year, and regardless of the catch, is an infringement of the right to fish granted by Congress (43 Stat. 464, supra) notwithstanding the fact, if it he a fact, as alleged in the answer, that skillful fishermen who devote their entire time to fishing during the entire fishing season, can catch fish to the value of $3,000.
In our opinion on the previous appeal, wo stated that the right of the territorial Legislature to make reasonable discrimination between residents and nonresidents, was not involved in our conclusion therein which was based upon the unreasonableness of the lisenee fee. The question of the right of the territorial Legislature to discriminate between citizens of the United States who are residents and those who are nonresidents of Alaska, where Congress has expressly granted a right to all citizens of the United States to fish in Alaskan waters unless prohibited by regulations of the Secretary of Commerce, is involved in the case, but in view of our conclusion that the license tax is an unreasonable abridgement of the right of a citizen of the United States, it is unnecessary to consider the discriminatory provisions except as they tend to illustrate the unreasonableness of requiring so large an amount to be paid by nonresidents for exercising the same right afforded to residents by the payment of only one l/250th of that amount. The decision of tho Supreme Court (Haavik v. Alaska Packers’ Ass’n, 263 U. S. 510, 44 S. Ct. 177, 68 L. Ed. 414) holding that the territorial Legislature could discriminate between residents and nonresidents in fixing license fees, was rendered before the enactment of the act of Congress now under consideration granting rights to all citizens to fish in areas designated by the Secretary of Commerce for that purpose. It is, therefore, not decisive of the right of the territorial Legislature to so discriminate between citizens of the United States who are residents and those who are nonresidents of Alaska where both have been granted a right by act of Congress.
The decree is reversed and the trial court is directed to enter a decree permanently enjoining the defendant from enforcing the license fee of $250 fixed by the statute of Alaska in question.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "agriculture". What subcategory of business best describes this litigant?
A. single family farm
B. commercial farm, agri-business
C. farm - other
D. unclear
Answer:
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songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
BUILDING MATERIAL and Dump Truck Drivers, Teamsters Local Union No. 36, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, California Dump Truck Owners Association, Larry Shepard, Associated General Contractors of America, et al., Interve-nors. CALIFORNIA DUMP TRUCK OWNERS ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Building Material and Dump Truck Drivers, Teamsters Local No. 36, Intervenor. Larry SHEPARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Building Material and Dump Truck Drivers, Teamsters Local No. 36, Associated General Contractors of America, California Dump Truck Owners Association, Intervenors.
Nos. 80-1503, 80-1807 and 80-1808.
United States Court of Appeals, District of Columbia Circuit.
Argued May 7, 1981.
Decided Dec. 4, 1981.
Richard D. Proehazka, San Diego, Cal., for Building Material and Dump Truck Drivers Teamsters Local Union No. 36 petitioners in No. 80-1503 and intervenor in No. 80-1807 and 80-1808. Robert M. Baptiste and John E. Santucci, Jr., Washington, D. C., also entered an appearance for petitioner.
Robert F. Gore, Springfield, Va., for petitioner in No. 80-1808 and Intervenor Larry Shepard in No. 80-1503.
• Robert B. Shanks, Washington, D. C., for California Dump Truck Owners Ass’n petitioner in No. 80-1807. William C. Bottger, Jr. and Robert V. Kuenzel, Los Angeles, Cal., were on the brief for California Dump Truck Owners Ass’n petitioner in No. 80-1807 and intervenor in No. 80-1503 and 80-1808.
David S. Fishback, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel and Carol De Deo, Atty., N. L. R. B., Washington, D. C., were on the brief for respondent.
Robert W. Bell, Jr., San Diego, Cal., Associated Gen. Contractors of America, et al., intervenor in Nos. 80-1503 and 80-1808. James K. Smith, San Diego, Cal., also entered an appearance for Associated Gen. Contractors of America, et al., intervenor in Nos. 80-1503 and 80-1808.
Before McGOWAN and ROBB, Circuit Judges, and JAMESON , United States Senior District Judge for the District of Montana.
Opinion for the Court filed by Circuit Judge ROBB.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
ROBB, Circuit Judge:
These eases are here on petitions to review the order of the National Labor Relations Board in Building Material & Dump Truck Drivers, Teamsters Local Union No. 36, etc., 249 N.L.R.B. No. 38 (1980). The Board ordered the Building Material and Dump Truck Drivers, Teamsters Local Union No. 36 and the Associated General Contractors, San Diego Chapter, Inc., the San Diego Building Contractors Association, the Engineering and General Contractors Association, and their employer members (the Contractors) to cease enforcing certain provisions of a Master Labor Agreement entered into by the Union and the Contractors in 1977. The Board found that the 1977 Master Labor Agreement required signatory employers to cease dealing with non-union dump truck operators who are independent contractors, thus violating section 8(e) of the National Labor Relations Act. 29 U.S.C. § 158(e) (1976).
The Union has petitioned for review of the Board’s order, arguing that the Board erred in finding that the truck operators in question are independent contractors. The Associated General Contractors have intervened in support of the Board's order. The California Dump Truck Owners Association, an association of independent dump truck owner-operators, and Larry Shepard, an individual dump truck owner-operator, were charging parties before the Board. They have also petitioned for review, arguing that the remedy awarded by the Board is inadequate. We affirm the Board’s order in all respects.
The dispute arises out of the building and construction industry in San Diego County, California. The practice in that industry is that building contractors hire dump truck operators on a day-to-day basis to haul materials to and from construction sites. The contractors generally obtain the services of dump truck operators through brokers, who refer hauling jobs to individual operators, handle billing for services rendered, and generally coordinate arrangements between the contractors and the truck operators. The brokers receive a commission based on the amount billed. Larry Shepard, one of the petitioners, is a dump truck owner-operator who generally accepts referrals from the Terra Trucking Company, one of the brokers in the San Diego area. Petitioner California Dump Truck Owners Association is composed of owner-operators who operate through brokers.
Since at least 1965 the Union and the Contractors have negotiated master labor agreements to govern hauling work performed in the San Diego area. There has been a dispute during that same period between the Union and the non-union truck operators over the availability of hauling
jobs for non-union truck operators. The Union sought terms in each new agreement to prohibit dealings with non-union operators. The 1977 Master Labor Agreement contained such terms. Section 4 of the Agreement required signatory contractors to transport “all materials ... to or from or on the site of the work by workmen furnished by the appropriate craft UNION . ...” Under section 42(B)(1) of the Agreement only union truck operators were cleared by the Union for work with the Contractors. The Agreement also provided that signatory contractors could procure the services of truck operators only through a “person, firm, or corporation . . . signatory to an agreement with the Union”. Section 42(B)(2). Other provisions of the Agreement required the Contractors to treat owner-operators as employees, section 42(B)(4), and penalized contractors who failed to comply with the Agreement. Section 42(B)(9)(12) & (13). In short, under the 1977 Agreement the Union enlisted the aid of the Contractors to insure that only signatory brokers received subcontracts and only union truck operators performed hauling services for building contractors in the San Diego area. The Board found that the Union and the Contractors enforced the Agreement against brokers and non-union dump truck operators.
In November 1977 the Kissinger Trucking Company, a broker, entered into a contract with the Penhaul Company to supply hauling services for a demolition project. Shortly after the project began, Kissinger’s manager was informed that Kissinger would be replaced because it was referring non-union truck operators. Penhaul had signed the 1977 Agreement and could not, under the terms of that agreement, contract with a broker that referred non-union truck operators. Kissinger Trucking lost the contract with Penhaul and subsequently signed the 1977 Agreement.
The Agreement was also enforced against Terra Trucking, Larry Shepard’s usual broker. Terra Trucking has been a party to master labor agreements since 1974, and so was required by the 1977 Agreement to refer only union truck operators to building contractors. In August 1978 Terra Trucking’s president, Fred ReCupido, received a letter from the Union stating that under the Agreement he must not deal with seven non-union truck operators, including Shepard. ReCupido informed the seven truck operators that they must join the Union or make other arrangements for brokerage of their services. Shepard joined the Union under protest. Some of the seven non-union truck operators did not join the Union but continued to accept referrals from Terra Trucking.
In December 1977 the Dump Truck Owners filed a charge with the Board alleging that the Agreement violated section 8(e) of the Act. The charge alleged that the Union and the Contractors had agreed to cease, and had actually ceased, doing business with the non-union dump truck operators. In October 1978 Larry Shepard filed a similar charge against the Union, alleging that the Union had violated sections 8(b)(4) and 8(e) of the Act by pressuring Terra Trucking not to broker his services because he did not belong to the Union notwithstanding that he is an independent contractor. At the request of the Regional Director, Shepard filed a new charge containing only the 8(e) allegation.
In January 1979 the Regional Director consolidated the two charges and issued a complaint alleging only a violation of section 8(e) by the Union and the Contractors. After a full trial the Administrative Law Judge found that the truck operators are independent contractors and not employees under the Act. Thus, the Union and the Contractors violated section 8(e) by agreeing not to do business with the non-union truck operators and their brokers. The ALJ recommended that the Board order the Union and the Contractors to cease and desist from enforcing the unlawful provisions of the Agreement. The ALJ further recommended that the Union and the Contractors be ordered to make whole those truck operators who were compelled to join the Union and pay dues, initiation fees, assessments, and contribute to Union trust funds.
On exceptions and briefs the Board affirmed the ALJ’s findings and conclusions, as relevant here, but deleted the make-whole remedy recommended by the ALJ. The Board ordered the Union and the Contractors to cease enforcing the unlawful portions of the Agreement and to post notices. The Union, Mr. Shepard, and the Dump Truck Owners petition for review and the Board petitions for enforcement of its order.
The first question presented by the petitions for review is whether the Board correctly found that the Union and the Contractors violated section 8(e) of the Act by agreeing not to deal, and ceasing to deal, with certain brokers and non-union truck operators. Section 8(e) prohibits “any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer”. 29 U.S.C. § 158(e) (1976). This section of the Act has been interpreted by the Supreme Court to prohibit agreements calculated to satisfy “secondary” union objectives, i.e., those objectives which are not “addressed to the labor relations of the contracting employer vis-a-vis his own employees”. National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 644-45, 87 S.Ct. 1250, 1268-69, 18 L.Ed.2d 357 (1967). Agreements which limit the employer, here the Contractors, to subcontracting with businesses that recognize the union or have a union contract violate section 8(e). Truck Drivers, Local 413 v. NLRB, 118 U.S.App.D.C. 149, 158, 334 F.2d 539, 548 (1964). Thus, a provision in an agreement which is designed to compel independent contractors to become union members as a condition of doing business with a party to the agreement is unlawful because it restricts the employer in his dealings with other businesses. Local 814, International Brotherhood of Teamsters v. NLRB, 167 U.S.App.D.C. 387, 389-90, 512 F.2d 564, 566-67 (1975), cert. denied, 434 U.S. 818, 98 S.Ct. 56, 54 L.Ed.2d 73 (1977). It is not disputed that the Union and the Contractors may not lawfully enforce the provisions of the 1977 Agreement which restrict dealings with truck operators who are independent contractors. However, the Union contends that the Board erred in finding that the truck operators are independent contractors. The truck operators, says the Union, are employees of the brokers. We agree with the Board.
Section 2(3) of the Act, 29 U.S.C. § 152(3) (1976), defines “employee” as excluding “any individual having the status of an independent contractor”. The Act does not define “independent contractor”, but Congress intended the Board and the courts to “apply general agency principles in distinguishing between employees and independent contractors under the Act.” NLRB v. United Insurance Co., 390 U.S. 254, 256, 88 S.Ct. 988, 989, 19 L.Ed.2d 1083 (1968) (footnote omitted). In applying agency principles the Board and the courts look at all aspects of an individual’s relationship with the putative employer. Local 777, Democratic Union Organizing Committee, Seafarer’s International Union v. NLRB, 195 U.S.App.D.C. 280, 290-91, 603 F.2d 862, 872-73 (1978). Although no one part of the relationship is determinative, the degree of supervision over the means and manner of performing the task assigned is most important in determining whether a relationship is that of employee or independent contractor. Associated General Contractors of California, Inc. v. NLRB, 564 F.2d 271, 279 (9th Cir. 1977); see Joint Council of Teamsters No. 42 v. NLRB, 146 U.S.App.D.C. 275, 279, 450 F.2d 1322, 1326 (1971). Under the familiar principles of agency law
an employer-employee relationship exists when the employer reserves not only the right to control the result to be achieved, but also the means to be used in attaining the result. On the other hand, where the employer has reserved only the right to control the ends to be achieved, an independent contractor relationship exists.
Seafarers International, supra, 195 U.S. App.D.C. at 290-91 n.24, 603 F.2d at 872-73 n.24, quoting Twin City Freight Inc., 221 N.L.R.B. 1219, 1220 (1975). Accord: City Cab Co. of Orlando, Inc. v. NLRB, 202 U.S.App.D.C. 261, 264, 628 F.2d 261, 264 (1980). It is the Board which determines independent contractor or employee status in the first instance and we must affirm the Board’s determination if it is supported by the record as a whole. 29 U.S.C. § 160(e) (1976); Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 463-64, 95 L.Ed. 456 (1951).
Given these legal principles, our task is limited to determining whether the Board’s finding that the truck operators are independent contractors is consistent with the statute and the record. The Board found that the truck operators are not supervised in any manner by the brokers, who simply refer hauling jobs to them. While on the job only the building contractor’s personnel tell the truck operators where to deliver a load, and this is done by hand signals. The Board found that the truck operators may accept referrals from more than one broker and are free to negotiate a job rate that is higher than a minimum rate set by a state commission. The truck operators own their trucks, and arrange licensing, insurance, repairs and maintenance. They are responsible for operating expenses, may subcontract job referrals, are personally liable for spillage, pay Social Security taxes as self-employed persons, and often receive payment based on tonnage or mileage as opposed to hourly wages. As the Board concluded, it is fair to describe these truck operators as independent businessmen, free to decide when, whether, and how to work. This being so the Union may not lawfully compel them to become members in order to carry on their business.
The Union challenges the Board’s conclusion by pointing to certain facts which are said to indicate a close working relationship between Terra Trucking, a broker, and some of the truck operators that accept referrals from Terra. Specifically, the Union notes that Terra Trucking (1) rents trailers to some truck operators, (2) requires five days notice before a truck operator may cease renting a trailer, (3) insures its rented trailers under a policy that includes a two-hundred-fifty dollar deductible clause, (4) makes fuel available for purchase by the operators, (5) performs all billing and collection services for the truck operators, (6) pays the truck operators each month whether or not the bills are collected and (7) the truck operators are told when and where to report to begin work.
We think these facts and others relied on by the Union do not compel a finding that the truck operators are employees under the Act. None of the facts relied on by the Union establishes that the truck operators have given brokers the right to control their work. Taken together, the facts indicate that some of the truck operators have a close working relationship with a broker. This suggests that the truck operators have contracted away some aspects of entrepreneurial freedom and that certain risks have been shifted to the brokers; but the record taken as a whole does not compel a conclusion that the truck operators have surrendered control over their operations to the brokers. On the contrary, the record fully supports the Board’s conclusion that the truck operators are independent contractors. Because the truck operators are independent contractors, the Union and the Contractors may not enter into an agreement which prohibits dealings with them unless they become union members. The 1977 Agreement was thus invalid and the Board’s order against its enforcement is proper.
We turn to the attack on the Board’s remedy by Shepard and the dump truck operators. As we have said, the AU recommended that the Union and the Contractors be ordered to reimburse the dues, contributions and fees paid by those truck operators who joined the Union. The Board declined to adopt this recommendation. In a footnote to its decision, 248 N.L.R.B. No. 38 at 3 n.2, the Board said “we find that the reimbursement of owner-operators ordered by the Administrative Law Judge would not effectuate the remedial policies of the Act. See Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. [Mechanical Handling Systems, Inc.] v. NLRB, 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961).” The Board found “a reimbursement order, typically used to ‘make whole’ employees for violations of the Act, to be generally overbroad and inappropriate in the context of 8(e) violations.” [Emphasis in original] Id. The Board entered a cease and desist order against the Union, combined with notice posting.
Shepard and the dump truck owners complain that the Board failed to give an adequate explanation of its deletion of the make-whole order and that the cease and desist order is insufficient as a matter of law. We think, however, that the Board’s explanation is adequate, and that given our limited authority to disturb the Board’s exercise of discretion in such matters we may not interfere.
Section 10(c) of the Act provides that, upon finding that an unfair labor practice has been committed, the Board “shall issue ... an order requiring . . . such affirmative action ... as will effectuate the policies of this Act.” 29 U.S.C. § 160(e). See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 288, 97 L.Ed. 377 (1953). The Board’s remedial power “is a broad discretionary one, subject to limited judicial review”. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964). In fashioning its remedies, “the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts.” NLRB v. Gissell Packing Co., 395 U.S. 575, 612 n.32, 89 S.Ct. 1918, 1939 n.32, 23 L.Ed.2d 547 (1969). As this court has observed in reviewing a petitioner’s contention that a Board remedy did not go far enough:
Just what remedies are necessary to insure that a decision and order of the Board is effective is a matter largely for the Board’s discretion. To successfully attack the Board’s remedy one must show that the remedies prescribed by the Board are clearly inadequate in the light of the findings of the Board.
I.U.E., Local 806 v. NLRB, 140 U.S.App. D.C. 199, 204, 434 F.2d 473, 478 (1970). Indeed, the Supreme Court has held that a Board remedial order may not be disturbed “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943).
Section 8(e) of the Act makes it an unfair labor practice “for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby” an employer agrees not to handle products of, or agrees to cease doing business with, any other person. Such contracts or agreements, with certain exceptions not germane here, are unlawful per se ; evidence of coercion is not necessary to prove a violation of the Section. In the absence of coercion and because union members receive benefits as well as assume burdens, the Board properly finds it inappropriate to order reimbursement of sums paid pursuant to agreements that violate section 8(e); obviously, reimbursement to union members who were not coerced into joining would result in an unjust windfall to them. It was for this reason that the Supreme Court, in the case cited by the Board, Local 60, United Bhd. of Carpenters and Joiners v. NLRB, 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961), held that the Board was not authorized to require the union to refund dues and fees when there was no evidence that any of the employees had been coerced.
Section 8(b)(4)(ii)(A) of the Act provides that it is unlawful for a union to engage in certain conduct if the object thereof is to force or require any employer or self-employed person to join any labor organization or to enter into any agreement prohibited by section 8(e). The Board has properly ordered make-whole remedies where employers or self-employed persons have been subjected to violations of this section. See Local 814, Teamsters (Santini Bros.), 208 N.L.R.B. 184, 201 (1974), enfc’d, 178 U.S. App.D.C. 223, 546 F.2d 989 (1976), cert. denied, 434 U.S. 818, 98 S.Ct. 56, 54 L.Ed.2d 73 (1977); Sheet Metal Workers, Local 223, 196 N.L.R.B. 55, 57 (1972), remanded, 162 U.S. App.D.C. 145, 498 F.2d 687 (1974), modified, 214 N.L.R.B. 786 (1974). In the case before us, however, no violation of section 8(b)(4)(ii)(A) was alleged. The Supreme Court has held that a make-whole order “in those circumstances become punitive and beyond the power of the Board.” Carpenters Local 60, supra, 365 U.S. at 655, 81 S.Ct. at 877. The petitioners suggest that the Board should have made a sua sponte finding of section 8(b)(4)(ii)(A) violations; but since no such violation was charged a sua sponte finding would have been improper.
We think the Board’s explanation of its order, although terse, is a sufficient shorthand indication of its reasoning. Finally, we cannot say that the cease and desist order entered by the Board is insufficient to deter further wrongdoing. Both the unions and the contractors’ associations will be subject to contempt proceedings for any future violations. We will not disturb the Board’s judgment that the order is sufficient to effectuate the policies of the Act.
The petitions for review are denied and the Board’s order will be enforced in full.
So ordered.
. Section 8(e) provides that:
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection and subsection (b)(4)(B) of this section the terms “any employer”, “any person engaged in commerce or an industry affecting commerce”, and “any person” when used in relation to the terms “any other producer, processor, or manufacturer”, “any other employer", or “any other person” shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this subchapter shall prohibit the enforcement of any agreement which is within the foregoing exception.
. Section 8(b) provides that
It shall be an unfair labor practice for a labor organization or its agents—
* * * * * *
(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
(A) forcing or requiring any employer or selfemployed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;
(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
sf: ;}s * ift ¡t¡
29 U.S.C. § 158(b) (1976).
. Section 8(e) also contains a proviso excepting from its coverage all work performed on a construction job site. That proviso is not at issue in these cases.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNION INVESTMENT COMPANY, a Michigan Corporation, on behalf of its wholly-owned subsidiary Fort Wayne Mortgage Co., a Michigan Corporation, Plaintiff-Appellee, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, Defendant-Appellant.
No. 76-1027.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 7, 1976.
Decided Feb. 23, 1977.
Robert G. Russell, Kerr, Wattles & Russell, Robert R. Nix, II, Detroit, Mich., for defendant-appellant.
Robert S. Bolton, Butzel, Levin, Winston & Quint, Larry K. Griffis, Detroit, Mich., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
PHILLIPS, Chief Judge.
The question presented on this appeal is whether forged Federal Housing Administration Certificates of Mortgage Insurance were covered by a blanket bond issued by Fidelity and Deposit Company of Maryland (Fidelity), the defendant-appellant. Union Investment Company (Union), the plaintiffappellee, through a wholly owned subsidiary, relied upon the forged certificates in advancing mortgage money. In an opinion reported at 400 F.Supp. 860 (E.D.Mich. 1975), District Judge Charles W. Joiner held that the certificates were “securities, documents or other written instruments,” as defined in the finance company blanket bond issued by Fidelity, and that Union’s losses resulting from the forged certificates were covered by the blanket bond. Fidelity appeals. We affirm.
Jurisdiction is based upon diversity of citizenship and Michigan law controls. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although we have not found any reported Michigan decision squarely in point, we are satisfied that the District Court correctly applied the law of that State.
Union’s wholly owned subsidiary, Fort Wayne Mortgage Company (Fort Wayne), entered into a financing transaction with Lafayette Development Group Limited Dividend Housing Associates (Lafayette), whereby Fort Wayne would provide Lafayette with funds for federally subsidized housing under § 236 of the National Housing Act. A mortgage dated December 28, 1971, in the amount of $2,313,600 was executed, wherein Fort Wayne was the mortgagee and Lafayette was the mortgagor. The mortgage was to be insured by the Federal Housing Authority (FHA).
Prior to each advance under the mortgage, a separate certificate of mortgage insurance was to be issued by the FHA on Form 2403 to insure that advance against a default by Lafayette. Between August 4, 1972, and November 27, 1972, Fort Wayne received seven Forms 2403 bearing forged signatures of FHA officials. In reliance on these forms Fort Wayne disbursed $419,-649.94 for the benefit of Lafayette. However, the forms had not been presented to the FHA and, in fact, the insurance allegedly represented by the certificates was never in existence. Fort Wayne never recovered from Lafayette the money it had loaned.
The details of the agreement are set forth in the stipulation of facts quoted in the opinion of the District Court. 400 F.Supp. at 861.
Fort Wayne attempted to recoup some of its losses by filing a claim under the blanket bond executed by Fidelity. This bond provided indemnity against various losses, including those sustained from extending credit in good faith upon “any securities, documents or other written instruments” which proved to have been forged. The pertinent part of the bond states that it covers:
SECURITIES
(E) Loss sustained by the Insured through the Insured’s having, in good faith and in the course of business, whether for its own account or for the account of others, in any representative, fiduciary, agency or any other capacity, either gratuitously or otherwise, purchased or otherwise acquired, accepted or received, or sold or delivered, or given any value, extended any credit or assumed any liability, on the faith of, or otherwise acted upon, any securities, documents or other written .instruments which prove to have been
(a) counterfeited or forged as to the signature of any maker, drawer, issuer, endorser, assignor, lessee, transfer agent or registrar, acceptor, surety or guarantor or as to the signature of any person signing in any other capacity, or
(b) raised or otherwise altered or lost or stolen;
The bond defines “securities, documents or other written instruments” as follows:
Securities, documents or other written instruments shall be deemed to mean original (including original counterparts) negotiable or non-negotiable agreements in writing having value which value is, in the ordinary course of business, transferable by delivery of such agreements with any necessary endorsement or assignment.
Fidelity denied liability under the bond and Union filed the present suit. The District Court awarded Union a judgment for $75,000, plus interest and court costs. On appeal the only issue is whether FHA Form 2403 is a security, document or other written instrument, within the meaning of the bond.
In determining whether the bond provides coverage, the agreement must be construed so as to effectuate the intent of the parties. See Sobczak v. Kotwicki, 347 Mich. 242, 249, 79 N.W.2d 471 (1956); Piasecki v. Fidelity Corp., 339 Mich. 328, 337, 63 N.W.2d 671 (1954).
Fidelity’s principal contention is that the words “securities, documents or other written instruments” as used in Clause (E) of the bond are restricted to securities and do not extend to any other type of document upon which a financial institution may rely and suffer a loss. Fidelity in effect asserts that the words “securities, documents or other written instruments” mean nothing more than securities. It is argued that this interpretation is strengthened by the fact that the pertinent section of the contract is captioned “Securities.”
We do not agree. In American Insurance Co. v. First National Bank, 409 F.2d 1387 (8th Cir. 1969), the Eighth Circuit stated:
[T]he conclusion that the words “documents or other written instruments” extend coverage beyond securities is inescapable. To hold otherwise would in effect be holding that the words “documents and other written instruments” were placed in the Clause (E) for no purpose at all.
See also Snyder National Bank v. Westchester Fire Insurance Co., 425 F.2d 849, 852 (5th Cir. 1970). (Quoting the foregoing Eighth Circuit language with approval.)
A contract will not be construed so as to reject any words as surplusage if they reasonably can be given meaning. Vary v. Shea, 36 Mich. 388, 398 (1877). An insurer has a duty to express clearly the limitations of its policy. Ornamental Iron & Stair Co. v. General Accident & Life Assurance Corp. Ltd., 68 Mich.App. 259, 242 N.W.2d 544 (1976). If Fidelity had intended to include only securities and documents similar to securities, it could have used express language to that effect.
We agree with Judge Joiner’s analysis of the definition of “securities, documents or other written instruments.” He divided the definition into five components according to whether the document in question was:
(1) an original (or counterpart) in writing; (2) an agreement; (3) negotiable or non-negotiable; (4) valuable; and (5) whether the value was transferable in the ordinary course of business by delivery with any necessary endorsement or assignment.
He then satisfied himself that FHA Form 2403 fulfilled each of the above criteria. We do not agree with Fidelity’s contention that the definition is not susceptible to such analysis or that the interpretation adopted by the District Court distorts the meaning of the definition as a whole.
Fidelity argues that the words “negotiable or non-negotiable” in the definition indicates a restriction of coverage to commercial paper and commercial documents. It is asserted that the word “non-negotiable” was used so as to include commercial paper and commercial documents that do not meet all the technical requirements for negotiability under the Uniform Commercial Code, but are similar to securities. See M. C.L.A. § 440.8102(l)(b) (1967). We hold that the District Court was correct in rejecting this contention. The logical effect of these words “or non-negotiable” is to expand, not restrict, the coverage of this bond.
Next it is contended that Form 2403 does not fall within the definition of a security, document or other written instrument because it does not have value. Since value is not defined in the bond, it is to be construed in the ordinary and popular sense. Dittus v. Geyman, 68 Mich.App. 433, 437, 242 N. W.2d 800 (1976); Cora v. Patterson, 55 Mich.App. 298, 300, 222 N.W.2d 221 (1974). We agree with the District Court that Form 2403 has value under any of the commonly accepted meanings. Fidelity argues that the bond only covers documents having independent and intrinsic value. We find no basis for such a restricted definition of value.
Fidelity further asserts that Form 2403 is not transferrable in the ordinary course of business. Paragraph 10 of the stipulation of the parties expressly provides that “[a]n assignee of the mortgage and note also receives an assignment and the benefit of the mortgage insurance.” 400 F.Supp. at 862. Further, the District Court found that interim lenders often transfer Forms 2403 in the ordinary course of their businesses.
Finally, Fidelity argues that the evolution of case law by the courts under the old blanket bond form had greatly expanded the coverage of the policy. As a result, in 1969 insurers changed the form and added a definition of “securities, documents or other written instruments.” These changes, appellant contends, were designed to curtail the coverage of this bond. Nevertheless, we are not persuaded that these changes excluded coverage of certificates of mortgage insurance.
Language in an insurance contract is construed strictly against the insurer. Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 330, 224 N.W.2d 896 (1975). Even if the new definition adopted in 1969 is considered ambiguous, any ambiguity is construed in favor of the insured and against the insurer. Gorham v. Peerless Life Insurance Co., 368 Mich. 335, 343, 118 N.W.2d 306 (1962); Wolverine Insurance Co. v. State Automobile Mutual Life Ins. Co., 415 F.2d 1182, 1189 (6th Cir. 1969).
Affirmed.
. 12 U.S.C. § 1715z-l (1969).
. The maximum coverage under the provisions of the bond was $75,000.
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_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
John Daniel FERRELL, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 38 OF WALNUT RIDGE, ARKANSAS, Col. Willard A. Hawkins, and Transfer Board of the New York City Headquarters, Selective Service System, Defendants-Appellees.
No. 383, Docket 35502.
United States Court of Appeals, Second Circuit.
Argued Oct. 29, 1970.
Decided Oct. 30, 1970.
Michael N. Pollet, New York City (Marvin M. Karpatkin, Karpatkin, Ohrenstein & Karpatkin, New York City, of counsel), for plaintiff-appellant.
Daniel H. Murphy, II, Asst. TJ. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, of counsel), for defendantsappellees.
Before MOORE, FRIENDLY and ADAMS, Circuit Judges.
Of the Third Circuit, sitting by designation.
FRIENDLY, Circuit Judge:
Plaintiff, who will attain the age of 26 on November 15, 1970, held student deferments until he completed law school in June, 1969. He was then reclassified I-A and was ordered to report for a preinduction physical examination on July 23. He did not appeal his reclassification but obtained postponements of his physical examination until January 30, 1970. Having passed this, he was ordered by his local draft board in Arkansas on May 20, 1970, to report for induction on June 9.
On May 26 Ferrell, who had moved to New York City, applied to the board for conscientious objector classification, saying that as a result of thought during the last few days he had come to realize that participation in war or in noncombatant service would conflict with his deepest religious beliefs and training. The board mailed him SSS Form 150, which he filled out and returned. This recited long activity in Baptist church affairs and opposition to the Viet Nam war, said that his views with respect to conscientious objection theretofore “had not fully crystallized” but asserted that upon receiving the notice of induction his ideas “finally crystallized” and he realized he “really was a conscientious objector.” He submitted supporting letters from his wife and parents, which were attached to his affidavit in support for an injunction and one from a friend, which was not. The wife’s letter tracked the application but the parents’ letter, written from Arkansas, said that Ferrell’s objection to the draft “is not a new thing with him as he has told us many times that he did not want to kill people who were not attacking our homes.” The board granted him a 25 minute interview on July 21, with three members present. A summary shows that Ferrell responded in line with his Form 150 but that the board determined not to reopen the classification “feeling that his claim was not based on moral, religious, or ethical principles but rests instead on expediency. The expediency being to avoid the draft.” By letter dated July 22, 1970, the board’s executive secretary, who had attended the interview, advised Ferrell that the members had determined there was no change in his status resulting from circumstances over which he had no control and that his classification was not reopened.
A month later Ferrell began this action for an injunction in the District Court for the Southern District of New York and obtained a temporary restraining order against his induction. The Government contested the court’s power to grant relief in light of § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3). Alternatively it urged denial on the merits. Judge Mansfield, in a well-considered opinion, sustained the latter position but did not discuss the former, very likely because, as will later be seen, the two issues have some tendency to merge. Upon plaintiff’s filing a notice of appeal, the district court granted a stay of induction pending application here, and this court granted a further stay. Plaintiff has been notified of a new order requiring him to report for induction on October 29.
The interpretation of § 10(b) (3) in light of applicable Supreme Court decisions has recently provoked a division of opinion within another panel of this court. Fein v. Selective Service System Local Board No. 7, 430 F.2d 376 (2 Cir., 1970). We need not traverse that territory again in this case, for two reasons. We are bound by the majority’s decision, and we do not believe any different result would be called for under Chief Judge Lumbard’s dissent. Ferrell argues that the local board’s action was “blatantly lawless,” see Oesterreich v. Selective Service Board, 393 U. S. 233, 238-239, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), because under Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), the board was required to reopen since Ferrell had made a prima facie case. In the first place, this ignores that, as this court has pointed out in United States v. Jones, 433 F.2d 1292, 1293 n. 6 (2 Cir. 1970), the Supreme Court “was concerned there [in Mulloy] with reopenings prior to receipt of the induction notice.” Even if that should be wrong, as appellant claims —and in view of the care taken by the Court to make the limited character of its holding entirely clear, see 398 U.S. at 411 n. 1 and at 414-415 and n. 2, 90 S. Ct. 1766, we do not see how it can be — there would still remain the question whether the registrant had made a prima facie case. It would be open to fair debate whether Ferrell’s statements, largely unsupported by outside sources and seemingly contradicted with respect to late crystallization by his parents’ letter, would qualify even under that test. Finally even if the board had acted without full regard to the teachings of Mulloy, this would not be “blatantly lawless.” If any meaning is to be left to § 10(b) (3), it must cover determinations such as these.
If we should be in error about this, we would affirm the denial of injunctive relief on the merits. We have little to add on this score to Judge Mansfield’s opinion and what we have already said. Ferrell made no such impressive showing of an approach toward conscientious objection which reflection after the notice of induction might have matured into a full fledged objection as in Capobianco v. Laird, 424 F.2d 1304 (2 Cir. 1970), and Paszel v. Laird, 426 F.2d 1169 (2 Cir. 1970). The thinness of his own statements, the lack of substantial corroboration, the seeming contradiction of recent crystallization in his parents’ letter, and his demeanor at the hearing, see United States v. Simmons, 213 F.2d 901, 904 (7 Cir. 1954), rev’d on other grounds, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955), constituted a sufficient basis in fact for a finding that he had not sustained the burden of showing that he had become a conscientious objector after receiving his notice of induction. Although the board could have expressed its views with greater precision, the summary and the secretary’s letter leave no doubt that was what it meant.
We affirm the denial of a temporary injunction and vacate the stay of induction. The mandate shall issue forthwith.
. United States ex rel. Brown v. Resor, 429 F.2d 1340 (10 Cir. 1970), is not to the contrary. The court recognized the more stringent standards for reopening after notice of induction under “the exacting language of the regulations” but faulted the board because it had merely noted “No change warranted” without explaining why. This also was the decision in Scott v. Volatile, 431 F.2d 1132 (3 Cir. 1970).
. We thus have no occasion to consider the question which divided Judge Hays and Chief Judge Lumbard in Fein, and on which Judge Blumenfeld did not pass, namely, whether a bare allegation that more than $10,000 is in controversy meets the requirements of 28 U.S.O. § 1331 in cases of this sort.
. Ferrell’s brief on appeal contends that minutes of the local board, not contained in the record transmitted to us, disclose that it did not vote upon his request for reopening as 32 C.F.R. § 1604.52a(d) requires. No such claim was made in the comidaint or moving affidavit or in Ferrell’s brief in the district court, where the Government would have had an opportunity to answer. Since the summary of Ferrell’s interview indicates that the three members present concurred in the decision, this would appear to be at worst an informality affecting no substantial rights.
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_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
HENSEL PHELPS CONSTRUCTION CO., a Colorado corporation and Aetna Casualty and Surety Company, a Connecticut corporation, Appellants, v. UNITED STATES of America for the Use and Benefit of Reynolds Electrical and Engineering Company, Inc., Appellee.
No. 10137.
United States Court of Appeals Tenth Circuit.
July 28, 1969.
John J. Mullins, Jr., Denver, Colo. (Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., were with him on the brief), for appellants.
Stuart S. Gunckel, Denver, Colo. (Akolt, Shepherd, Dick & Rovira, Denver, Colo., were with him on the brief), for appellee.
Before LEWIS, BREITENSTEIN and HOLLOWAY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
In this Miller Act case, Reynolds Electrical and Engineering Company, a subcontractor, had judgment for $22,660 against Hensel Phelps Construction Company, the prime contractor, and its surety because of extra work performed by Reynolds in the construction of certain motor repair shops for the United States at Fort Carson, Colorado.
Hensel Phelps disputes the findings of the trial court that the work was not covered by the written subcontract and that Reynolds performed the work at the request of Hensel Phelps. The prime contract included the installation of 120 electrically operated overhead doors. Reynolds was the electrical subcontractor. The doors were supplied by McKee Door Company. The disputed items relate to the wiring of certain switches controlling the doors and to the additional wiring necessitated by the relocation of the motors which operate the doors.
The operation of each door requires an electric motor, two limit switches, and a safety switch. At the time of execution of the Reynolds contract, the drawings showed the motor location on the wall at the top of the door and did not show the control wiring for the switches. The door contract with McKee was made some 8-10 months after the Reynolds contract. The drawings accompanying the McKee contract showed the motor location some 20 feet inside from the top of the door opening and set out the control wiring for the switches.
In its description of the work to be performed the Reynolds contract specifically includes all work under Section 36 of the specifications and says: “Included in this subcontract are all required equipment connections, overhead door hookup, and fence grounding.” Section 36-21 of the specifications reads:
“All wiring for the connection of motors and control equipment as indicated on the electrical drawings shall he furnished and installed under this section of the specifications. Except as otherwise specifically noted, automatic-control wiring, signaling, and protective devices are not included in this section of the specifications, but shall be furnished and installed under other sections of the specifications. Control wiring not shown on the electrical drawings shall be furnished under other sections of the specifications.”
We are concerned with automatic control wiring which was not shown on the drawings and with additional wiring caused by the change in motor location.
The arguments of Hensel Phelps are not persuasive. The general reference in the contract to “over head door hookup” does not control over the specific provision of § 36-21 that “automatic-control wiring, signaling, and protective devices” are not included. Reliance on § 2 of the specifications is misplaced. It provides that anything mentioned or shown in either the specifications or drawings shall be considered as if mentioned in both. The wiring of the switches was not shown on the drawings originally submitted to Reynolds when it bid on and contracted to do the work, and § 36-21 of the specifications excludes such wiring. The reference to § 18-10c(5) of the specifications is not appropriate because that section is not included within the provision of the Reynolds contract covering the work to be performed. We construe § 36-16 to cover design changes in the equipment. The Hensel Phelps construction would make § 36-16 conflict with § 36-21. The intent of the parties to a contract shall be ascertained from the contract as a whole rather than from a specific provision. Fanderlik-Locke Co. v. United States, 10 Cir., 285 F.2d 939, 947, cert. denied 365 U.S. 860, 81 S.Ct. 826, 5 L.Ed.2d 823. When we view the Reynolds contract as a whole, we are convinced that neither the wiring for the switches nor the additional wiring required by the change in motor location was covered, or intended to be covered.
Before the execution of the Reynolds contract, an official of Reynolds discussed with an official of Hensel Phelps the situation regarding the overhead doors and said in effect that Reynolds was responsible for anything on the drawings. Hensel Phelps did not disagree. This testimony is said to be inadmissible. It was received subject to the court’s determination of whether an ambiguity existed. If there was an ambiguity, the evidence was proper. If there was not, the evidence was not prejudicial. We agree with the trial court that the work in question was not covered.
Reynolds told Hensel Phelps before the electrical work on the doors was undertaken that it considered the wiring for switches and for the changed motor location extra work. Later, Reynolds wrote Hensel Phelps a letter saying that the work was extra and that its estimate therefor was $19,519. It also said that in the interest of maintaining the job schedules it would proceed with the questioned work. About two months thereafter, Hensel Phelps wrote McKee that it considered the questioned wiring part of the McKee contract. This evidence was pertinent because if the contract is not clear the conduct of the parties is given great weight in construing it. Sam Macri & Sons, Inc., v. United States, 9 Cir., 313 F.2d 119, 124; and see Fanderlik-Locke Co. v. United States, 10 Cir., 285 F.2d 939, 947, cert. denied 365 U.S. 860, 81 S.Ct. 826. Although we disagree with the Hensel Phelps contentions that the work was covered by the Reynolds contract, the effect of those contentions, if any, is to make the contract unclear. Hensel Phelps was not prejudiced by the admission of the evidence.
The wiring for the switches was not within the Reynolds contract. The change of motor location required additional wiring. A contractor who bids for work has the right to rely on the plans and specifications submitted to him for bidding purposes. Wunderlich Contracting Company v. United States, 10 Cir., 240 F.2d 201, 205, cert. denied 353 U.S. 950, 77 S.Ct. 861, 1 L.Ed.2d 859. Burdens other than those contemplated by the contract may not be placed upon the contractor without additional compensation. Id. The wiring in question was extra work for which Reynolds is entitled to be paid.
Reynolds is entitled to damages in an amount equal to the reasonable value of services and materials, including profit and overhead, for which they could be obtained under like circumstances. Wunderlich Contracting Company v. United States, 10 Cir., 240 F.2d 201, 205, cert, denied 353 U.S. 950, 77 S.Ct. 861, and Wynne v. United States, 10 Cir., 382 F.2d 699, 701. Three expert witnesses, Henley and Raque for Reynolds and Sharp for Hensel Phelps, testified on damages. We do not consider the letter from the Reynolds project engineer in which he estimated the extra work at $19,519 because that was an offer made to encourage an agreement on the extra work and it was not accepted by Hensel Phelps.
Henley, the district manager of Reynolds, testified that the amount claimed in the complaint, $23,156, was the reasonable value. He said that actual costs were not available because of the difficulty of keeping actual cost records when the extra work was done in conjunction with contract work. Henley based his figure on the original Reynolds estimate with adjustments for factors obtainable from job costs available at the end of the work. He also gave consideration to independent estimates one of which was prepared by an independent estimator in connection with a similar problem relating to 60 doors. That estimate was $11,560. Hensel Phelps argues that the Henley testimony should not be received because it is based on the expert opinion of another. We held in 6816.5 Acres of Land, etc. v. United States, 10 Cir., 411 F.2d 834, that an expert opinion may not be based on the opinion of another person. That rule is not controlling here because Henley used the independent estimates to corroborate the figure which he, Henley, had reached through his own analysis.
Raque, testifying for Reynolds, fixed the reasonable value of the extras at $25,757. Sharp, a witness for Hensel Phelps, testified that the value of the extras was a total of $9,309.79. The trial court found that the estimates of the Reynolds’ witnesses “were the most satisfactory.” Hensel Phelps argues at length the differences in approach between Henley and Raque and criticizes the methods used and the results obtained. We decline to enter into this area of disagreement. Hensel Phelps is not entitled to a trial de novo in the appellate court on the question of damages. The amount awarded is within the range of the evidence and is not clearly erroneous. Freeman v. Warrior, 10 Cir., 409 F.2d 1101, and cases there cited.
The trial court disallowed a claim by Reynolds for extra work resulting from the change in placement of plates on which the motor starters and disconnects were mounted. The change was from the top of each door to a location six feet above the floor. The amount claimed and disallowed was $496. Hensel Phelps says that a greater amount should have been disallowed. The project engineer for Reynolds fixed the value of the plate work at $496. Hensel Phelps offered no evidence on this item. The effect of the court’s ruling was to deny any claim for the relocation of the plates. We believe that the trial court treated the item properly.
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_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.
In re LOWRY. C. I. T. CORPORATION v. MACHEN.
No. 2936.
Circuit Court of Appeals, Fourth Circuit.
April 8, 1930.
Fred E. Martin, of Norfolk, Va., for appellant.
H. M. Woodward, of Norfolk, Va., for appellee.
Before PARKER and N0RTHC0TT, Circuit Judges, and HAYES, District Judge.
NORTHCOTT, Circuit Judge.
One William Lowry filed a voluntary petition in bankruptcy in the District Court of the United States for the Eastern District of Virginia, on the 10th day of June, 1929, and he was, on the same day, duly adjudicated a bankrupt. In the schedules filed by him, he listed a Hudson automobile as subject to the lien of appellant company. Appellee was duly appointed and qualified as trustee for the bankrupt estate. In July, 1929, appellant filed a reclamation petition setting up its lien on the automobile. The trustee opposed the petition, and, after a hearing in August, 1929, the referee entered an order directing the trustee to surrender said Hudson automobile to appellant. On a petition for review, the •judge of the District Court, afteí a hearing, entered an order in September, 1929, setting aside the order of the referee and dismissing the reclamation petition. From which action this appeal was taken.
There is no dispute as to the facts, and the agreed statement of facts shows that the Hudson automobile in possession of the bankrupt at the time of his adjudication had been purchased by him from C. E. Wright & Co. as a used car. The ear when new had been purchased by one Calkins. At some time during the Calkins ownership, the original motor No. 475476, having become defective, was replaced by a motor which was numbered 497577, and was later turned back to the Wright Company on a trade, and sold to the bankrupt on January 18, 1929.
At the time of the latter sale, Wright & Co. made application to the Motor Vehicle Commissioner of Virginia for transfer of title to the bankrupt, and failed to make note of the change of the motor number on the original certificate of title. A title certificate (No. B 477639) showing motor No. 475476 instead of motor No. 497577, was issued to the bankrupt with the lien of appellant indorsed thereon. Wright & Co., in January, 1929, sold and transferred said lien to the appellant corporation.
The pertinent part of the Virginia Motor Vehicle Registration Act reads as follows: Section 2154 (39) j, See. 9:
“(b) Every application for a certificate of title shall contain a statement of the applicant’s title and of all liens or encumbrances upon said vehicle and the names and addresses of all persons having any interest therein and the nature of every such interest.
“(c) Every application for a certificate of title shall contain a brief description of the vehicle to be registered, including the name of the maker, the engine or serial number * * *
“(d) In the event the vehicle for which the registration of the certificate of title is applied is specially constructed, reconstructed or foreign vehicle, such fact shall be stated in the application.”
Section 2154 (39) L of Code of Virginia (1926) reads in part as follows:
“Said certificate of title when issued by the Motor Vehicle Commissioner showing a lien or encumbrance, shall be deemed adequate notice to the Commonwealth, creditors and purchasers that a lien against the motor vehicle exists, and the recording of such reservation of title, lien or encumbrance in the county or city where the purchaser or debtor resides or elsewhere, is not necessary and shall not be required. * * *
“Liens or encumbrances placed on motor vehicle * * * must be shown on said certificate of title * * * Said certificate of title of such motor vehicle shall be delivered to the person or corporation holding the first lien or encumbrance upon said motor vehicle and retained by him or them until the entire amount of his or their lien is fully paid by the owner of said vehicle.”
It would seem that where the lien of the vendor or his assignee is recorded in the Motor Vehicle Commissioner’s Office and on the face of the title certificate, the recording of the conditional sale contract shall not be necessary. And the conditional sale contract, though not recorded, is an essential and integral part of the whole transaction. The contract contained the correct motor and serial numbers of said automobile.
The title certificate B477639, issued to the bankrupt, and in possession of appellant at the time of the bankruptcy, showed on its face that the said automobile was a Hudson brougham, 1928 model; that the owner was William M. Lowry, 427 Wilson Road, Norfolk, Va.; that the said Lowry states on oath that the said motor vehicle is subject to the following lien: $530.28 on conditional sale contract, dated January 18,1929, in favor of C. I. T. Corporation, Norfolk, Va.
The conditional sale contract signed by the bankrupt shows on its face that a Hudson brougham, 1928 model, motor number 497577, serial number 784296, was sold to William M. Lowry, 427 Wilson Road, Norfolk, Va.; that there was a balance due of $530.28; that the contract was dated January 18, 1929, and that said chattel will be kept at 427 Wilson Road, Norfolk, Va.
The sole question in the case is whether the fact that an erroneous number was given in the title certificate as the engine number would invalidate the lien of appellant, and, in considering this question, we must bear in mind that the bankruptcy court is in effect a court of equity, and endeavors, where possible, to do equity. Seottsville Nat. Bank v. Gilmer, 37 E.(2d) 227, decided by this court, January 14, 1930. This being true, it seems to us inequitable to hold that a certificate of title, under the Virginia law, that had an erroneous engine number but that referred to a conditional sale contract that gave the correct engine and serial numbers, correctly described the automobile, the place where it could be found and the person who owned and had possession of it, would not be sufficient to maintain the lien as against the trustee in bankruptcy.
Under the circumstances here to' take that which in all equity and justice is the property of appellant for the benefit of general creditors would not be doing equity. The certificate of title, defective as it was, was sufficient to pass title to the bankrupt, and upon the bankrupt’s title and possession of the automobile the trustee bases his claim. The question at once arises that if the certificate was sufficient for the one purpose why then is it not sufficient for the purpose of maintaining the lien?
Certainly the statement of the lien in the certificate of title would be sufficient to put a purchaser for value upon notice as to the lien. MacCallum-Donahoe Finance Co. v. Warren et al,, 122 Wash. 176, 210 P. 368.
It has also been held that a wrong registration number inserted in an application for insurance did not invalidate the insurance where there was evidence identifying the car as the one intended to be insured, and when the car was the only one owned by the insured. White v. Home Mut. Ins. Ass’n, 189 Iowa, 1051, 179 N. W. 315. See, also, Moore v. North River Ins. Co., 111 Kan. 420, 207 P. 760; Northwestern Nat. Ins. Co. v. Chambers, 24 Ariz. 86, 206 P. 1081.
The same rule that applies to the description of an article in a chattel mortgage or conditional sale contract would apply here, and this court has held in Tilton v. H. W. Wade Mfg. Co. (C. C. A.) 2F.(2d) 358, 359, that a description not more specific or detailed than the one here was sufficient. “The general rule upon this subject as stated by the text-writers, and which seems to be sustained by the weight of decided eases, is, that a deed of trust or mortgage conveying chattels, when recorded, is constructive notice to third persons, if the description in the deed or mortgage is such as will enable them to identify the property, aided by the inquiries which the deed or mortgage itself indicates and directs.” Tilton v. H. W. Wade Mfg. Co., supra. See, also. Florence v. Morien, 98 Va. 26, 34 S. E. 890.
In National Cash Register Co. v. Marks, 13 F.(2d) 628, the opinion of the Circuit Court of Appeals of the Sixth Circuit is also- to the same effect.
Appellee relies upon a number of cases from other states on the question of the faulty description, but a study of these eases shows that point to have been settled under statutes different from the Virginia statute, which latter only requires a “brief description” of a vehicle, and we therefore do not think the cases relied upon are controlling here. Certainly the greater equity is to allow appellant’s claim, and the order of the court below is accordingly reversed, and this cause is remanded.
Reversed.
Question: 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_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 of America, Appellee, v. John MUSACCHIA and Joseph Gambino, Defendants-Appellants.
Nos. 967, 968, Dockets 88-1491, 88-1495.
United States Court of Appeals, Second Circuit.
Argued March 6, 1989.
Decided March 21, 1990.
Paula Schwartz Frome (James 0. Druker, Kase & Druker, Garden City, N.Y., of counsel), for defendant-appellant John Mu-sacchia.
Charles L. Weintraub (John L. Pollok, Hoffman & Pollok, New York City, of counsel), for defendant-appellant Joseph Gambino.
Alan Hechtkopf, Tax Div., Dept, of Justice (James I.K. Knapp, Acting Asst. Atty. Gen., Shirley D. Peterson, Asst. Atty. Gen., Washington, D.C., Robert E. Lindsay, Atty., Tax Div., Dept, of Justice, Washington, D.C., and Andrew J. Maloney, U.S. Atty., E.D.N.Y., of counsel), for appellee U.S.
Before CARDAMONE and PRATT, Circuit Judges, and LASKER, District Judge.
Honorable Morris E. Lasker, United States District Judge for the Southern District of New York, sitting by designation.
LASKER, District Judge:
John Musacchia and Joseph Gambino appeal their convictions on one count of conspiracy to defraud the United States by willfully failing to pay gasoline excise taxes in violation of 18 U.S.C. § 371 (1988) and 26 U.S.C. §§ 7201, 7202 and 7206(2) (1982). Musacchia appeals his conviction on six additional counts of aiding and abetting evasion of such taxes.
Appellants contend that it was reversible error for the prosecution to bolster the testimony of three witnesses by eliciting testimony on direct examination that their cooperation agreements with the government required them to tell the truth. Mu-sacchia also asserts that the statute of limitations bars his prosecution on the six counts charging aiding and abetting of substantive tax evasion offenses under §§ 7201 and 7202. In supplemental briefing following the Supreme Court’s holding in Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (holding jury selection by magistrates not authorized under the Federal Magistrates Act), appellants urge reversal because they did not consent to jury selection by a magistrate. For the reasons discussed below, we conclude that the appeals are without merit and affirm.
BACKGROUND
Musacchia owned and operated O.K. Petroleum (“O.K.”), a corporation that sold gasoline and heating oil through retail and wholesale outlets in New York State. During the period at issue federal law imposed an excise tax of nine cents on gasoline sold by producers and certain wholesale distributors. In December 1982, O.K. applied for a Registration for Tax-Free Transactions (“Form 637”) from the Internal Revenue Service (“IRS”), which would exempt the company from the excise tax. O.K.’s application was never approved. Thereafter O.K. made large purchases of gasoline from two distributors but refused to pay the distributors the money due for federal excise taxes, representing first that the purchases were tax-exempt because O.K. was about to receive, and then that it had received, a Form 637. O.K. also purchased gasoline from General Oil Distributors, Inc. (“General Oil”) in 1983 and failed to pay $270,000 in excise taxes by representing that it held a valid Form 637. When General Oil discovered that O.K. lacked a Form 637 it barred all tax-exempt sales to O.K.
Musacchia subsequently devised a “daisy chain scheme” to purchase untaxed gasoline. Under this scheme Rappaport Fuel Company (“Rappaport”), which held a valid Form 637, would purchase tax-exempt gasoline from various suppliers and then create fictitious invoices for sales to transient front companies that were not controlled by appellants, but which they formed for the specific purpose of evading excise taxes. These companies had valid Forms 637 and operated only long enough to allow Rappaport to document the fictitious sales. Rappaport would in fact distribute the gasoline to Musacchia. Two companies that Musacchia controlled, AKA Petroleum (“AKA”) and CWM Petroleum (“CWM”) paid the distributors for the gasoline purchased by Rappaport. Through this scheme Musacchia purchased more than 8 million gallons of gasoline on which he failed to pay taxes of more than $777,000.
Gambino assisted Musacchia in forming AKA and concealing Musacchia’s involvement in the company. Gambino solicited Joseph J. Ribando, Gambino’s brother-in-law, to sign on as president of AKA and Luis Cuomo to act as Treasurer. Ribando opened a bank account and mail drop for AKA and signed checks at Gambino’s request. He had virtually no other involvement with the company. Cuomo, the treasurer, had even less involvement than Ri-bando. Both ultimately resigned. Gambi-no also helped Musacchia to operate the front companies and to persuade Herman DeJonge, the owner of Rappaport, to make untaxed sales to Musacchia.
I. BOLSTERING
During direct examination of Arthur Williams (a principal in CWM), Cuomo, Ri-bando and DeJonge, the government elicited testimony that cooperation agreements between the witnesses and the government required the witnesses to tell the truth and provided that if they lied on the witness stand they would be subject to prosecution for perjury. Appellants first objected, without stating grounds, to the prosecutor’s questions to Ribando and Williams about these “truth-telling” provisions but these objections were overruled by the judge. After the judge overruled Musacc-hia’s objection to the prosecutor’s question to DeJonge about the requirement in his agreement that he testify truthfully, defense counsel moved for a mistrial on the ground that the government had improperly bolstered the testimony of Williams, Cuomo and Siegal prior to any defense attack on their credibility. The judge denied the motion but gave the following curative instruction to the jury:
The government has brought out testimony from several witnesses that I’ve decided should not have been brought out concerning the possibility of being prosecuted for testifying falsely. So the testimony concerning testifying falsely, I am instructing you to disregard those statements.
Appellants now claim that, despite this curative instruction, the government’s deliberate and improper questioning of Williams, Cuomo and Ribando about the truth-telling provisions of their agreements and the court’s failure to sustain appellants’ timely objections constitute reversible error. The government concedes that the defense did not attack the credibility of Ribando, Cuomo and Williams before they testified but argues that even if subject to review, the error alleged by appellants was harmless because: 1) the judge gave a curative jury instruction; 2) defense counsel conceded during their argument for a mistrial that the entire testimony of Ribando and Williams was truthful, and therefore any bolstering was not prejudicial; and 3) Williams’ statement was rendered harmless by a subsequent attack on his credibility by Musacchia’s counsel and by the peripheral nature of his testimony.
The government argues at the outset that appellants’ claim of error resulting from the admission of the cooperation agreement testimony is reversible only if it was plain error, because appellants raised only general objections to the testimony at trial. Appellants reply that their objections were “apparent from the context” under Fed.R.Evid. 103(a)(1), which states that a specific ground for objection need be raised only “if the specific ground was not apparent from the context.” Based on a review of the trial transcript, it is clear that appellants’ objections were apparent from the context. Defense counsel specifically objected to questions about the truth-telling provisions of the agreements and not to the testimony that the cooperation agreements were entered into by the witnesses. Accordingly, the objections were preserved for review.
This court has consistently held that:
Because of the bolstering potential of cooperation agreements... we have permitted such agreements to be admitted in their entirety only after the credibility of the witness has been attacked_ [Bolstering aspects [of cooperation agreements] such as promises to testify truthfully or penalties for failure to do so may only be developed to rehabilitate the witness after a defense attack on credibility.
United States v. Cosentino, 844 F.2d 30, 33 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988) (footnote and citations omitted); see United States v. Jones, 763 F.2d 518, 522 (2d Cir.), cert. denied, 474 U.S. 981, 106 S.Ct. 386, 88 L.Ed.2d 339 (1985). However, in United States v. Arroyo-Angulo, 580 F.2d 1137, 1146-47 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d 260 (1978), we held that because defense counsel challenged the credibility of a government witness in the opening statement and later in cross-examination and during summation, such challenge was inevitable, and rendered harmless the error in admitting the witness’s cooperation agreement into evidence during direct examination.
The government concedes that it was error to question the witnesses about the truth-telling provisions prior to defense challenges to credibility but contends that such error was harmless. Appellants argue that because the prosecutor intentionally bolstered the testimony of its witnesses the error cannot be deemed harmless under United States v. Borello, 766 F.2d 46, 56 (2d Cir.1985), in which the court held that the admission of and reading from the truth-telling portions of a cooperation agreement on direct examination were not harmless error even though the defense subsequently challenged part of Borello’s testimony. The Borello court did not find it necessary to engage in harmless error analysis, id. at 58, stating:
[W]e have previously suggested that an Arroyo-Angulo error is harmless if the defendant subsequently attacks the witness’s credibility. [United States v. Barnes, 604 F.2d 121, 151 (2d Cir.1979).] The error, however, cannot always be harmless.... [W]here we have spelled out in a series of cases the procedure for introducing cooperation agreements... [f]or us to disapprove of the... bolstering of the witness’s testimony and then to declare it harmless error would make our remarks in the previous cases purely “ceremonial.” The error cannot be deemed harmless.
Id. at 57-58. Appellants argue that because the prosecutor in this case deliberately questioned the witnesses regarding the truth-telling provisions of the agreements knowing such questioning was improper under the case law of this Circuit, the error in this case cannot be harmless and no harmless error analysis is required under Borello. As evidence of the intentional nature of the error appellants note that, during argument in the robing room on Musacchia’s motion for a mistrial, a member of the prosecution team offered to withdraw the questions about the truth-telling provisions of DeJonge’s agreement.
We disagree with appellants’ assertion that the prosecutor intentionally violated the rule against questioning the witnesses about truth-telling provisions of their agreements on direct examination prior to any defense attack on credibility. Indeed, the government contended during the argument on Musacchia’s motion for a mistrial, that it construed Musacchia’s counsel’s opening statement challenge to DeJonge’s credibility as an attack on the credibility of all witnesses, permitting the challenged questions. By contrast, in Borello, defense counsel did not attack the credibility of the cooperating prosecution witness during the opening statement, leading the court to conclude that the prosecution had intentionally violated the law. Moreover, Borello did not establish a per se rule that such errors can never be deemed harmless but rather that they cannot always be harmless. We conclude that the government had a good faith basis for asking the challenged questions. Accordingly, Borel-lo does not bar an examination of the government’s claims that the error was harmless.
The government contends that, because defense counsel argued during the trial that Ribando and Cuomo were telling the truth, any bolstering of their testimony was irrelevant to the outcome of the trial. During argument on the mistrial motion, Musacchia’s counsel stated:
In fact the defense has been that Williams, Cuomo and Ribando are all telling the truth but that we have an explanation for why they were used in this fashion. Their credibility was not attacked, and at least two of them I didn’t ask questions of.... They weren’t attacked or questioned in any fashion, and as a matter of fact as I’ve stated we adopt their testimony.
Based on this statement the government asserts that the defense conceded the truthfulness of Cuomo’s and Ribando’s testimony and, accordingly, there was no. significant chance that the outcome of the trial was affected by the error. Moreover, according to the government, counsel for Musacchia subsequently attacked Williams’ credibility by arguing in summation that Williams had “lied,” thereby rendering his earlier testimony about the truth-telling portions of the agreement admissible under Arroyo-Angulo.
Appellants assert that accepting the government’s argument — that the error is harmless because Williams’ credibility was challenged and Ribando and Cuomo’s testimony was not challenged — is tantamount to holding that such an error can never be harmless, contrary to the holding in Borel-lo.
However, appellants have not specified how they were prejudiced by the error. Appellants do not dispute that Williams’ testimony was peripheral. Their admission during trial that their strategy involved characterizing the testimony of Cuo-mo and Ribando as truthful lessens the effect of the error with respect to those witnesses. Most importantly, Judge Wex-ler gave a clear curative instruction to the jury not to consider the challenged testimony regarding the truth-telling portions of the cooperation agreements. Given the good faith belief by the prosecutor that the credibility of all the witnesses had been put into question by Musacchia’s opening statement and for the reasons discussed above, we conclude that the admission of testimony regarding the truth-telling requirements of the cooperation agreements on direct examination was harmless error.
II. APPLICABLE STATUTES OF LIMITATION
Musacchia contends that the applicable statutes of limitation bar his prosecution and subsequent conviction for the substantive crimes charged in counts 2 through 7 of the indictment. The indictment in this case was filed nearly four years after the date of the last act relating to counts 2 through 7. Musacchia asserts that the applicable statute of limitations for counts 2 through 7 is three years; the district court held that the applicable limitations period was six years. 696 F.Supp. 1548, 1550 (E.D.N.Y.1988).
The statute of limitations for criminal prosecutions arising under the internal revenue laws is found in 26 U.S.C. § 6531 (1982), which states in relevant part:
No person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted within 3 years next after the commission of the offense, except that a period of limitation shall be 6 years—
(1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner;
(2) for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof;
(3) for the offense of willfully aiding or assisting in, or procuring, counseling, or advising, the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document).
The numbered sections above describe offenses carrying a special six-year limitations period rather than the general three-year statute of limitations for internal revenue offenses. Musacchia claims that because § 6531(3) is the only internal revenue offense carrying a six-year statute of limitations which uses the term “aiding, or assisting,” the aiding and abetting of all other substantive internal revenue offenses must carry the general three-year statute of limitation. Accordingly, he argues, counts 2, 4 and 5 of the indictment, under which he was convicted of aiding and abetting violations of 26 U.S.C. §§ 7201 and 7202, must be dismissed as untimely.
In support of this argument, Musacchia notes that other specifically enumerated exceptions to the general three-year statute of limitation explicitly refer to specific offenses under the code by section number. For example, 26 U.S.C. § 6531(7) provides that one of the exceptions is “for offenses described in section 7214(a),” which relates to intimidation of officers and employees of the United States. Musacchia asserts that if Congress had intended, as the government argues, to include a particular substantive offense (in this case § 7202 or § 7201) among those covered by § 6531(3) it could have done so by reference to that offense; because it did not do so with respect to the offense at issue the six-year statute of limitations applies only to the offense of aiding and abetting the filing of a false return and not to aiding and abetting of the offenses defined in 26 U.S.C. §§ 7201 and 7202 (counts 2, 4 and 5).
In United States v. Campbell, 426 F.2d 547, 553 (2d Cir.1970), this court held that the applicable statute of limitations for the offense of aiding and abetting under 18 U.S.C. § 2 is the statute for the substantive offense charged. The court observed:
18 U.S.C. § 2 does not define a crime; rather it makes punishable as a principal one who aids or abets the commission of a substantive crime.... Clearly one can violate [26 U.S.C.] § 7214(a) as an aider and abettor, and the offense, not the persons involved, determines the applicability of the six-year period of limitation.
Id. Musacchia fails to address Campbell but its analysis controls in this case. Accordingly, the statute of limitations for the substantive counts charged in the indictment apply in this case. Counts 2, 4, and 6 charge aiding and abetting violations under 26 U.S.C. § 7201, which carries a six-year limitations period as explicitly provided in 26 U.S.C. § 6531(2). It follows that the statute of limitations does not bar prosecution of these counts.
Counts 3, 5, and 7 charge aiding and abetting under 26 U.S.C. § 7202 — willful failure to account for and pay over gasoline excise taxes. Musacchia argues for the first time on appeal that § 7202 carries a three-year rather than a six-year statute of limitations. Section 6531(4) mandates a six-year statute of limitations “for the offense of willfully failing to pay any tax.” In United States v. Porth, 426 F.2d 519, 521-22 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), the court held, without analysis, that § 7202 falls within the six-year statute of limitations exception of § 6531(4). Musacchia relies on a more recent district court decision which held to the contrary, United States v. Block, 497 F.Supp. 629 (N.D.Ga.), aff'd, 660 F.2d 1086 (5th Cir.1980). Block held that the language of § 6531(4) does not track the language of § 7202:
It seems unlikely to the Court that Congress would have used the language of so many of the § 7201 et seq. code sections when drafting the subsections of § 6531 but omit use of the key words of § 7202 if it had intended to make failure to “pay over” third party taxes subject to the six-year statute of limitations.
497 F.Supp. at 632. A second factor in the Block court's determination was that
[Section] 6531(4) is directed at “the offense of willfully failing to pay any tax....” (emphasis added), not a class of offenses. It is quite clear that failure to “pay over” third party taxes [under § 7202] is substantively different from failure to pay taxes. See Slodov v. United States, 436 U.S. 238, 248-50, 98 S.Ct. 1778, 1785-1787, 56 L.Ed.2d 251 (1978).
Id. (footnote omitted).
The Block court’s analysis is not convincing. Although § 6531(4) does not track the language of § 7202 precisely, in the Supreme Court’s decision in Slodov v. United States, 436 U.S. 238, 249, 98 S.Ct. 1778, 1786, 56 L.Ed.2d 251 (1978), the terms “pay” and “pay over” were used interchangeably. In Slodov, the Court interpreted 26 U.S.C. § 6672, which applies to “[a]ny person required to collect, truthfully account for, and pay over any tax,” as applying “only to failure to pay taxes.... ” 436 U.S. at 249, 98 S.Ct. at 1786. Although the Court was analyzing a different provision of the code — the significance of the word “any” modifying the word “person” under § 6672 — and did not focus on the distinction argued by appellants in this case, it is still significant that the Court used the terms “pay over” and “pay” synonymously.
The government persuasively argues that it would be inconsistent for Congress to have prescribed a six-year limitation period for the misdemeanor offense defined in 26 U.S.C. § 7203 (failure to file a return or pay a tax) while providing only a three-year limitation period for the felony offense defined in § 7202. Moreover, the language of § 6531(4) — applying the six-year statute of limitations to “the offense of willfully failing to pay any tax, or make any return... at the time or times required by law or regulations” — suggests that it applies to any of several sections of the Code that define such an offense. For these reasons we find the reasoning of Block unpersuasive and conclude that a six-year statute of limitations applies to the offense defined by 26 U.S.C. § 7202 and thus to counts 3, 5 and 7 in the indictment. Accordingly, Musacchia’s prosecution and conviction were not barred by the applicable statutes of limitation.
CARDAMONE, Circuit Judge:
We concur in our colleague Judge Lasker’s thorough discussion of Part I (Bolstering) and Part II (Statute of Limitations), which concludes that nothing occurred during the trial which would warrant reversal of Musacchia’s and Gambino’s convictions on the merits.
III. JURY SELECTION BY A MAGISTRATE
Following oral argument of this appeal on March 6, 1989, we granted a motion on August 80,1989 to withhold decision on the appeal until supplemental briefs could be submitted on the issue of whether the magistrate conducting voir dire of the jury warrants reversal in light of Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). Having now received and considered the supplemental briefs filed by appellants and the government, we turn to this issue. Appellants argue that their convictions must be reversed. We disagree and vote to affirm.
The Supreme Court in Gomez addressed the question of “whether presiding at the selection of a jury in a felony trial without the defendant’s consent is among those ‘additional duties’ ” permitted a magistrate under 28 U.S.C.A. § 636(b)(3) (West Supp. 1989). Gomez, 109 S.Ct. at 2239. Section 636(b)(3), part of the Federal Magistrates Act, limits the duties that may be assigned a magistrate to those which the magistrate could execute without being “inconsistent with the Constitution and laws of the United States.” Gomez concluded that § 636(b)(3) did not grant magistrates authority to preside over voir dire in a criminal trial. Because “[ajmong those basic fair trial rights that ‘ “can never be treated as harmless” ’ is a defendant’s ‘right to an impartial adjudicator, be it judge or jury,’ ” the Court concluded that “harmless-error analysis does not apply in a felony case in which, despite the defendant's objection and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury.” 109 S.Ct. at 2248.
Since the Supreme Court’s holding there have been a number of circuit court opinions addressing the issues of (1) whether Gomez established a jurisdictional bar to magistrates presiding over voir dire, and (2) whether reversal is mandated where a defendant prior to Gomez either consented or failed to object to empanelment before a magistrate. In two cases handed down subsequent to Gomez, we held that Gomez did not create a jurisdictional bar to a magistrate conducting voir dire, and that reversal is not mandated when a defendant, prior to that decision, consented or failed to object to empanelment by a magistrate. See United States v. Vanwort, 887 F.2d 375, 382-83 (2d Cir.) (failure to object), petition for cert. filed (Dec. 21, 1989); United States v. Mang Sun Wong, 884 F.2d 1537, 1546 (2d Cir.1989) (explicit consent), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990).
Here appellants, who were tried before Gomez was filed, neither consented nor objected to voir dire by a magistrate. Under Vanwort, there is no question that we do not find reversal warranted in these circumstances. Appellants contend — and the dissenting opinion concludes — that we may distinguish the instant case from Van-wort because in this case the jury was selected after our holding in United States v. Garcia, 848 F.2d 1324, 1332 (2d Cir.1988), rev’d sub nom. Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), which stated that “even absent a defendant’s consent [and where a defendant explicitly objects] the Federal Magistrates Act permits district courts to delegate the task of jury selection in felony cases to a magistrate.” We think the distinction irrelevant.
In making this argument, appellants rely upon United States v. France, 886 F.2d 223 (9th Cir.1989). There, faced with a factual situation identical to that now before us, the court held that failure to object would not amount to a waiver because two earlier circuit cases “presented [the defendant] with a ‘solid wall of circuit authority’... [that] had already decided, erroneously, that magistrates could conduct voir dire in felony trials. Any objection to the magistrate performing voir dire... would, therefore, clearly have been futile.” Id. at 228. France was predicated on two Ninth Circuit en banc opinions establishing that a defendant was excused from making a contemporaneous objection when there was a “solid wall of authority” that would have' prevented a district court from upholding the defendant’s objection. Id. at 227-28.
Significantly, we have not established an exception to the contemporaneous objection requirement in areas where there is a “solid wall of authority” running contrary to the defendant’s objection. The only authority even suggesting an analogous principle in this Circuit is a footnote, cited in the dissenting opinion, in United States v. Indiviglio, 352 F.2d 276 (2d Cir.1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The footnote acknowledges that under plain-error analysis “[ajppellate courts often notice error not objected to below when, under the law existing at the time of the trial, objection would have been futile and when error was asserted on review on the basis of a subsequent appellate decision.” Id. at 280 n. 7. This single line cannot be said to establish a circuit wall-of-authority exception similar to that relied upon by the Ninth Circuit.
Nor did Garcia itself create authority sufficient to cause defense counsel to believe any objection to jury empanelment before a magistrate would be futile. The decision in Garcia was promptly appealed to the Supreme Court and reversed a year later. In contrast, the Ninth Circuit already had ruled in two cases decided four years prior to Gomez — certiorari had been denied in both — that magistrates were empowered to conduct voir dire under the Federal Magistrates Act. See United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986). Thus, the posture of the issue in our Circuit is more akin to that existing in the First Circuit where “[tjhere was no binding rule... such as necessarily foredoomed an objection to magistrates’ empaneling.” United States v. Lopez-Pena, Nos. 87-2003 through 87-2008, slip op. at 15-16 (1st Cir. Nov. 22, 1989) (rehearing en banc filed Dec. 20, 1989).
Appellants additionally claim that Gomez states that a magistrate is without jurisdiction under the Federal Magistrates Act to conduct voir dire. We disagree. Since Gomez was decided we and other circuits have focused on the “without defendant’s consent” language and generally ruled that where there is either consent or a failure to object a magistrate may conduct the jury voir dire in a felony case. See Vanwort, 887 F.2d at 382-83; Wong, 884 F.2d at 1544; Lopez-Pena, supra, slip op. at 17-18 (not plain error to permit magistrate to preside since objection to magistrate must be raised or it is waived); Government of the Virgin Islands v. Williams, 892 F.2d 305, 310 (3d Cir.1989) (absent demand no constitutional difficulty under § 636(b)(3) with delegating jury selection to magistrate); United States v. Ford, 824 F.2d 1430, 1438-39 (5th Cir.1987) (en banc) (harmless error for magistrate to conduct voir dire where defendant failed to object), cert. denied, 484 U.S. 1034, 108 S.Ct. 741, 98 L.Ed.2d 776 (1988); United States v. Wey, 895 F.2d 429 (7th Cir.1990) (jury selection by magistrate is not plain error where no prejudice is shown). Con-cededly, France concluded otherwise. The court there ruled that defendant’s failure to contemporaneously object to the magistrate conducting jury selection did not waive her right to appellate review. 886 F.2d at 226. But that holding may be explained, as noted earlier, by what the court perceived as the futility of defendant raising an objection below.
We think that the magistrate had subject matter jurisdiction to conduct the voir dire in this case. Federal courts are courts of limited jurisdiction empowered to hear only those cases within the judicial power of the United States, as set forth in Article III of the Constitution, and those over which Congress has conferred to them a jurisdictional grant. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803). From this principle, it has been a commandment etched into the edifice of federal jurisprudence for over 150 years that parties cannot confer subject matter jurisdiction on a federal court, not granted it by the Constitution and Congress, although they may be willing and even anxious for the court to hear and determine the case. See Jackson v. Ashton, 33 U.S. (8 Pet.) 148, 149, 8 L.Ed. 898 (1834); cf. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 & n. 17, 71 S.Ct. 534, 542 & n. 17, 95 L.Ed. 702 (1951). Thus, when the Supreme Court stated that “[a] critical limitation on [the magistrate’s] jurisdiction is consent,” it plainly was not referring to the subject matter jurisdiction of the district court over a felony criminal trial. Gomez, 109 S.Ct. at 2244.
Instead, we think the “consent” language has reference to waivable matters under the Federal Rules of Criminal Procedure. Under Fed.R.Crim.P. 12 certain kinds of motions in a criminal prosecution must be raised before trial or they are waived. There are five numbered subdivisions of Rule 12(b) listing such defenses, objections and requests. Lack of subject matter jurisdiction, is not included among these waivable objections, and may be raised at any time. Fed.R.Crim.P. 12(b)(2). Subdivision (1) of Rule 12(b) provides for an objection based on defects in the institution of the prosecution. It is in this category of objectionable matters that the improper selection of the jury by a magistrate falls. It is a “fair trial” right to have an Article III judge conduct voir dire of the jury, see Gomez, 109 S.Ct. at 2248, and for the district court to direct the magistrate to perform it is a defect in the institution of the prosecution.
Unable to square the Supreme Court’s use of the word “jurisdiction” with traditional notions of subject matter jurisdiction, see Gomez, 109 S.Ct. at 2244-45 (magistrate’s present expanded criminal trial jurisdiction depends on consent), we believe that what Gomez intended was that — absent Congress’ grant of authority in the magistrate to perform jury selection in a felony case — the improper reference to a magistrate is a waivable defect that must be raised within the time permitted by Fed. R.Crim.P. 12(c) or it is waived under Rule 12(b). Thus, a magistrate’s lack of jurisdiction to act absent consent is analogous to a district court’s lack of jurisdiction over the person, which is also a defense that is waived unless promptly asserted. See United States v. Grote, 632 F.2d 387, 388-89 (5th Cir.1980) (failure to object to personal jurisdiction of trial court because of faulty arrest warrant waived objection); 1 Wright, Federal Practice and Procedure: Criminal 2d § 193 (1982) (collecting cases). We conclude that the defendant’s failure to make a contemporaneous objection to the delegation of jury selection to a magistrate thereby waives the objection. Like our sister circuits, we do not find empanelment before a magistrate reversible on appeal as “plain error.” See Fed.R.Crim.P. 52(b).
In any event, we are constrained by our panel holdings in Vanwort and Wong to rule that appellants
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_post_trl
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
FORD MOTOR CO. v. BUSAM MOTOR SALES, Inc.
No. 11100.
United States Court of Appeals Sixth Circuit.
Dec. 8, 1950.
J. Mack Swigert, Cincinnati, Ohio (Taft, Stettinius & Hollister, Robert Taft, Jr., Cincinnati, Ohio, William T. Gossett, Duane D. Freese, Dearborn, Mich., of counsel), for appellant.
Robert N. Gorman, Cincinnati, Ohio (Gorman, Silversteen & Davis, Larz R. Hammel, Cincinnati, Ohio, on the brief), for appellee.
Before SIMONS, McALLISTER and MILLER, Circuit Judges.
MILLER, Circuit Judge.
Following a jury trial, resulting in a verdict and judgment against it, the defendant-appellant, Ford Motor Company, appealed from an order of the District Court denying its motion to set aside the verdict and judgment and for judgment in its favor. The plaintiff-appellee, in addition to arguing the case, on its merits, contends that the order appealed from is not such a final order of the District Court as can be reviewed by the Court of Appeals at this time. In view of our agreement with that contention, we will state the facts very briefly and not discuss the merits of the controversy.
By contract of March 4, 1946, the appellant designated the appellee as an authorized distributor of its motor vehicles. According to its terms, the contract could be terminated at any time at the will of either party upon written notice to that effect. The complaint alleges that on July 7, 1947, the appellee was notified by registered mail of the appellant’s intention to terminate the agreement effective, September 5, 1947, which purported termination was not in good faith on the part of the appellant and was a fraud on the rights of the appellee, in that it left the appellee on September 5, 1947 with unfilled orders for 316 Ford motor vehicles which it was not permitted to fill, and by reason of which it lost a net profit of $105,768.00. The complaint also alleges additional damage of $4,800 as expense incurred by the appellee in the preparation of plans for a' new building which the appellant had ordered it to build in accordance with a provision of the contract. ' The appellant relied upon the contract right of termination and denied that the termination was not made in good faith or that it was in any way a fraud on the rights of the appellee. At the close of the appellee’s testimony, the appellant made a motion for, a directed verdict, which was overruled. At the completion of appellee’s case, the appellant renewed this motion and the Court reserved its ruling thereon. The jury returned a verdict for the appellee in the amount of $87,000 upon which judgment was entered. Thereafter, appellant moved under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The Court denied the motion for judgment notwithstanding the verdict and granted the motion for a new trial. This appeal was taken from the order denying the motion for judgment notwithstanding the verdict.
It is provided by Title 28 U.S.C.A. § 1291 that — “The courts of appeals shall have jurisdiction of appeals from all final ■decisions of the district courts of the United States * * * except where a direct review may be had in the Supreme Court.” The question presented is whether the order appealed from is a final decision of the district court, as contemplated by the statute. If it is not, the appeal must be dismissed for lack of jurisdiction.
The Supreme Court has pointed out in several cases the nature of a final judgment for the purposes of appeal. In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 166, 82 L.Ed. 204, the Court said — “In criminal cases, as well as civil, the judgment is final for the purpose of appeal ‘when it terminates the litigation * * * on the merits’ and ‘leaves nothing to be done but to enforce by execution what has been determined’ ”, citing several prior Supreme Court opinions. In discussing the background and reason for such a rule, the Court said in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 541, 84 L.Ed. 783. “To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause” and “In thus denying to the appellate courts the power to review rulings at nisi prius, generally, until after the entire controversy has been concluded, Congress has sought to achieve the effective conduct of litigation.” In Cohen, Executrix v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, the Court said — “Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal * * *. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” In the Cobbledick and Cohen cases, the orders under discussion were adjudged appealable due to their peculiar characteristics. Such characteristics are not present in the case now before us. This Court, in Dowling Bros. Distilling Co. v. United States, 153 F.2d 353, 356, restated and applied the rule laid down in Berman v. United States, supra, namely, that “A judgment is final, for the purpose of appeal, only when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined.”
It follows from this rule that in the absence of a judgment, an appeal will not lie, even though a ruling has been given in the court’s opinion. Cashion v. Bunn, 9 Cir., 149 F.2d 969; United States v. San Geronimo Development Co., 1 Cir., 154 F.2d 78, 83-84, certiorari denied 329 U.S. 718, 67 S.Ct. 50, 91 L.Ed. 623; Lockwood v. Hercules Powder Co., 8 Cir., 172 F.2d 775.
The application of the rule is also seen in the following situations:
It is settled law that an appeal does not lie from an order granting a new trial. Barbarino v. Stanhope S. S. Co., 2 Cir., 150 F.2d 54; Howell v. Terminal R. Association, 8 Cir., 155 F.2d 807; Florini v. Stegner, 3 Cir., 82 F.2d 708; Long v. Davis, 9 Cir., 169 F.2d 982; Sentinel Co. v. Dinwiddie, 7 Cir., 41 F.2d 57. Under such circumstances, the final judgment has been set aside and there is no existing judgment from which an appeal can be taken.
It is likewise well settled that no appeal will lie from an order overruling a motion for a new trial. Gillette Safety Razor Co. v. Triangle M. Lab. Corp., 2 Cir., 87 F.2d 699, 702; Armstrong v. New La. Paz. Gold Mining Co., 9 Cir., 107 F.2d 453, 454; Poston v. Dixie Ohio Express Co., 5 Cir., 177 F.2d 301; Conboy v. First National Bank, 203 U.S. 141, 145, 27 S.Ct. 50, 51 L.Ed. 128; Luckenbach S. S. Co. v. United States, 272 U.S. 533, 540, 47 S.Ct. 186, 71 L.Ed. 394. Appeals may follow in time the entry of such an order, but such an appeal is properly taken from the judgment previously entered rather than from the order which refused to set it aside. Milton v. United States, 5 Cir., 120 F.2d 794; Gersing v. Chafitz, 77 U.S.App.D.C. 38, 133 F.2d 384; Bass v. B. & O. Terminal R. Co., 7 Cir., 142 F.2d 779.
Applying the same general rule, it follows that an appeal ■ may follow in time after the entry of an order 'sustaining a motion for the entry of judgment notwithstanding the verdict. The appeal is not taken from the order sustaining the motion but from the judgment thereafter entered which disposes of the case. It also logically follows that an appeal may follow in time after an order overruling a motion for judgment notwithstanding the verdict. The appeal is not taken from the order overruling the motion, but from the judgment previously entered, which the order did not set aside. This is analogous to an appeal following an order overruling a motion for a new trial, referred to above. See Donovan v. Jeffcott, 9 Cir., 147 F.2d 198; Simons v. United States, 9 Cir., 162 F.2d 905. In Borg-Warner Corp. v. Whitney, 6 Cir., 121 F.2d 444; Stewart v. Roberts, 80 U.S.App.D.C. 405, 154. F.2d 697, similar orders were held non-appealable; there was no existing judgment to appeal from.
We do not mean to say by the above that such rulings and. orders are not reviewable. On the contrary, they are reviewable by the Court of Appeal's at the proper time, which is following the subsequent entry of the final judgment which disposes of the case, and from which an appeal may be then taken. The orders being interlocutory are not appealable, but similar to other interlocutory rulings in the case, are reviewable at a later time. Bass v. B. & O. Terminal R. Co., 7 Cir., 142 F.2d 779; Pettingill v. Fuller, 2 Cir., 107 F.2d 933, 936; United States v. Hayes, 9 Cir., 172 F.2d 677, 679-680; Lockwood v. Hercules Powder Co., 8 Cir., 172 F.2d 775, 777; Guy v. Interstate Transit, Inc., 244 Ky. 479, 51 S.W.2d 455. This answers appellant’s contention that unless the appeal is allowed it will be deprived of its right to have the ruling in question reviewed by this Court.
Since an' appeal does not lie in the present case from the order granting a new trial, and in fact no appeal was taken from that part of the order, appellant necessarily is restricted to- the contention that an appeal lies from that part of the order overruling its motion for judgment notwithstanding the verdict. This Court held, however, in Borg-Warner Corp. v. Whitney, supra, 121 F.2d 444, that an order, in effect substantially the same, is interlocutory and not appealable. To the same effect is Stewart v. Roberts, supra, 80 U.S.App.D.C. 405, 154 F.2d 697. In the present case the appeal was not taken from the judgment; but was taken from the order overruling the motion, as was done in the Borg-Warner Corp. case.
Even if we should assume that the appeal was in reality from the judgment, instead of from the order overruling appellant’s motion, as was done in Milton v. United States, 5 Cir., supra, 120 F.2d 794, because of unusual circumstances there existing but “without intending to cfeate a precedent,” the result is the 'same. The other part of the order which sustained the motion for a new trial wiped out the judgment, leaving for all practical purposes the same situation as existed in Borg-Warner Corp v. Whitney, supra. Following this ruling there was no existing judgment in the case from which an appeal could be taken. The same reasoning, with the same result, was used by the Court in Allegheny County v. Maryland Casualty Co., 3 Cir., 132 F.2d 894. The correctness of such reasoning was recognized by the Court in McIlvaine Patent Corp. v. Walgreen Co., 7 Cir., 138 F.2d 177, 180, but the result avoided by reading into the order an implied condition that was considered unauthorized in Allegheny County v. Maryland Casualty Co., supra. Our ruling in Borg-Warner Corp. v. Whitney, supra, appears controlling in-this case. To the same effect are Delaware- & H. R. Corp. v. Bonzik, 3 Cir., 95 F.2d. 959, and Dostal v. B. & O. R. Co., 3 Cir., 170 F.2d 116. See also Howell v. Terminal R. Ass’n, 8 Cir., supra, 155 F.2d 807. Directly in point and supporting the ruling-is Balicki v. Central Greyhound Lines,. Inc., 3 Cir., 150 F.2d 402.
The appeal is dismissed.
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_dissent
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
LOCAL 879, ALLIED INDUSTRIAL WORKERS of AMERICA, AFL-CIO, and International Union, Allied Industrial Workers of America, AFL-CIO, Plaintiffs-Appellees, v. CHRYSLER MARINE CORPORATION and Chrysler Corporation, Defendants-Appellants.
No. 85-2872.
United States Court of Appeals, Seventh Circuit.
Argued April 17, 1986.
Decided May 20, 1987.
Frederick A. Muth, Jr., Whyte & Hirsch-boeck, S.C., Milwaukee, Wis., for defendants-appellants.
Kenneth R. Loebel, Habush Habush & Davis, Milwaukee, Wis., for plaintiffs-ap-pellees.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Appellants Chrysler Marine Corporation and Chrysler Corporation (“Chrysler” or “the Company”) appeal from the district court judgment enforcing an arbitrator’s award and awarding attorney’s fees to ap-pellees International Union, Allied Industrial Workers of America and Local 879 (“the Union”). Jurisdiction was based on § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. For the reasons set forth below, we will Affirm the enforcement of the arbitrator’s award, and Reverse the grant of attorneys’ fees.
FACTS
In May, 1983, Chrysler and the Union began to negotiate a successor agreement to that covering the Company’s Hartford and Beaver Dam, Wisconsin, plants, which was due to expire on June 30, 1983. Because of rumors that. Chrysler was considering closing or selling these plants, the Union twice proposed severance pay plans, both of which Chrysler rejected. In agreeing to a new contract, the Union accepted a company letter of intent stating that “in the event the Company should close all of its Hartford and/or Beaver Dam Plants, the Company will provide the Union six (6) months advance notice of such closing and will negotiate with the Union regarding a Severance Pay Plan.”
In August, 1983, Chrysler began to negotiate with Bayliner Corporation for the sale of the Hartford and Beaver Dam plants. Bayliner agreed to acquire Chrysler’s assets, to operate the Hartford plant for one year, excluding a reasonable transition period, and to operate the Beaver Dam plant for at least two months. The sale was originally scheduled to become effective December 30, 1983. The agreement was reached December 8,1983 and the sale was first made known to the Union and the employees at that time.
On December 12, 1983, the Union filed a grievance alleging that the sale was a closing which violated the June 30 agreement because six months’ notice had not been given. It requested that the closing be delayed for at least six months for negotiation of a severance pay plan. Chrysler denied the grievance, contending that the sale was not a closing, and the issue was ultimately submitted to arbitration.
The Union immediately brought suit to enjoin the sale pending arbitration. The district court granted a preliminary injunction, but on January 9, 1984, this court granted a stay, finding that the risk of irreparable injury weighed most heavily against Chrysler. The preliminary injunction was reversed May 31, 1984, 735 F.2d 1367. Both orders were unpublished.
On January 11, 1984, Chrysler informed all employees at both plants that effective January 13, 1984, they would no longer be employed. Ownership of the Hartford assets was transferred to the buyer on January 13, 1984, but the Beaver Dam assets were never sold, and operations there continued without interruption. Although Bayliner did not guarantee that the Company’s employees would be retained, as of February 6, 1984, 223 of 272 former Chrysler employees were employed at the Hartford plant.
The parties then proceeded with arbitration as provided by their collective bargaining agreement. On May 30, 1984, the arbitrator issued an award. The arbitrator found that the term “close” applied to the sale of the Hartford operation and that Chrysler had therefore obligated itself to give six months’ notice of the sale, and to negotiate a severance pay plan. He ordered several adjustments, affecting groups of employees, consistent with the theory that the sale could not have occurred less than six months after December 8, 1983, the date the employees learned of it. These adjustments are not in issue on this appeal. He also directed the parties to attempt to agree upon a severance pay plan comparable to plans in comparable relationships. He stated his opinion “that had such negotiations occurred prior to the effectuation of the sale in question, the Union would have been in an advantageous bargaining position, since the Company would probably have sought its acquiescence to a waiver of the six months’ notice requirement which would have enabled it to. meet the purchaser’s demands with respect to the timing of the transaction. Based upon these considerations, it is the undersigned’s opinion that the Union would in all likelihood have been able to negotiate a severance pay plan which provided benefits comparable with the more generous of such plans in existence at that time in comparable employee-union relationships.”
The parties were given 90 days in which to negotiate, after which the proceeding would be reconvened at the request of either party. Chrysler brought an action seeking to set aside the award. The parties did not negotiate, and the arbitrator reconvened the proceeding.
A supplemental award was issued on March 15, 1985, including, among other things, a severance pay plan for all former Chrysler employees. The arbitrator reviewed severance pay plans collectively bargained in three plants neighboring Chrysler’s. Based upon them, he termed the plan awarded “a fair and generally comparable severance pay plan.” The arbitrator stated that because it was impossible to determine with any certainty the Union’s and the employees’ damages as a result of Chrysler’s violation of the contract, he had attempted in the first award to provide an incentive for the Company to reach an agreement with the Union. That having failed, imposition of a severance pay plan is “the most viable way of affording the employees whose contractual rights were violated meaningful relief, and of imposing upon the Company obligations which in any way coincide with the obligations it had at the time of the contractual violation.” Supplemental Award at 14. The arbitrator also observed that no lesser or more traditional remedy, such as a cease and desist order or a direction to bargain, could be effective because the parties no longer had a bargaining relationship and Chrysler had no incentive to reach an agreement with the Union. Even employees hired by Bay-liner were to receive severance pay, because when Chrysler ceased operations, its employees had no rights to employment with the buyer. Moreover, while one purpose of severance pay is to provide income between jobs, it also compensates employees for their service and for termination for reasons unrelated to their conduct.
The district court ordered enforcement of both awards. It found that the arbitrator’s construction of the contract did not manifestly ignore the agreement, and that the creation of the severance plan was within the scope of his remedial powers. The court also awarded attorney’s fees incurred by the Union to enforce the award.
ARBITRATION AWARD
This court has repeatedly stressed that review of an arbitration award is extremely limited. See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and Local 449 v. Keystone Consolidated Industries, Inc., 782 F.2d 1400, 1402 (7th Cir.1986) and cases cited therein. So long as the arbitrator interpreted the contract in making the award, even if arguably incorrectly, it must be upheld. Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 187 (7th Cir.1985).
An award may be overturned only if the arbitrator must have based his. award on his own personal notions of right and wrong, for only then does the award fail “to draw its essence from the collective bargaining agreement” as required by the Supreme Court in United Steelworkers v. Enterprise Wheel,- 363 U.S. 593, 597, 80 S.Ct. 1353, 1361, 4 L.Ed.2d 1424, and by ourselves in Ethyl Corporation, 768 F.2d at 184-85; Jones Dairy Farm v. Local No. P-1236, United Food and Commercial Workers International Union, 760 F.2d 173, 176 (7th Cir.1985), certiorari denied, — U.S.-, 106 S.Ct. 136, 88 L.Ed.2d 112; Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1162 (7th Cir.1984), certiorari denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 926....
This low standard of review is essential to prevent a “judicialization” of the arbitration process. Ethyl Corporation, 768 F.2d at 184. Arbitration is an alternative to the judicial resolution of disputes, and an extremely low standard of review is necessary to prevent arbitration from becoming merely an added preliminary step to judicial resolution rather than a true alternative. Id. The parties have bargained ex ante for arbitration as an alternative means of dispute resolution, and ex post they must abide by this bargain. Camacho [v. Ritz-Carlton Water Tower, 786 F.2d 242, 244 (7th Cir.1986)].
E.I. Dupont de Nemours v. Grasselli Employees Independent Ass’n of East Chicago, Inc., 790 F.2d 611, 614 (7th Cir.1986).
Chrysler does not challenge the arbitrator’s construction of the collective bargaining agreement nor his finding of a breach by failing to give the Union six months’ notice of the sale and failing to negotiate regarding a severance pay plan. Instead, it argues that the remedy awarded exceeds the authority granted to the arbitrator by the contract.
The arbitration clause provides that: [t]he decision of the arbitrator shall be final, and binding on all parties. The arbitrator shall have authority only to decide questions as to the meaning and application of the terms of this Agreement, and such arbitrator shall have no authority to change existing rate ranges, incentive base rates or day work rates, for any labor grade or to add, delete or modify any of the terms of this Agreement.
Chrysler contends that by creating the duty “out of whole cloth” to provide severance pay, the arbitrator modified the terms of the agreement by imposing the obligation to come to terms, where only negotiations had been bargained for. It also argues that the arbitrator’s reasoning was faulty, and that the award to employees who were hired by Bayliner exceeds his remedial powers by creating a windfall and contradicting the parties’ bargaining history-
We disagree.
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There is the need for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet the particular contingency.
United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); see Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1163 (7th Cir.1984) (“Collective bargaining agreements often say little or nothing about the arbitrator’s remedial powers; yet it cannot be that he has none; and since he derives all his powers from the agreement, the agreement must implicitly grant him remedial powers when there is no explicit grant.”).
Concerning the breadth of such implication, we have said,
In these circumstances we must consider whether it is at all plausible to suppose that the remedy he devised was within the contemplation of the parties and hence implicitly authorized by the agreement. Only if we think it clearly was not may we reverse.
Id. at 1164. See also United Elec., Radio and Mach. Workers of Am., Local 1139 v. Litton Microwave Cooking Products, 728 F.2d 970, 972 (8th Cir.1984) (en banc); Desert Palace, Inc. v. Local Joint Executive Bd. of Las Vegas, 679 F.2d 789, 793 (9th Cir.1982) (as long as solution is within general framework of agreement, arbitrator may decide what parties would have agreed had they foreseen the dispute).
Of course, if Chrysler had given six months’ notice of its sale and had negotiated in good faith, but unsuccessfully, for a severance pay plan, no plan could have been imposed upon it under the collective bargaining agreement. Here, however, Chrysler has made it impossible to determine with certainty what would have been the result of negotiation either if six months’ notice had been given, or, as seems more likely under the circumstances, Chrysler had also sought a Union waiver of the full six months’ notice period. “We cannot say that the arbitrator clearly exceeded his authority or violated the collective-bargaining agreement, when he resolved doubts as to the remedy against the party that had broken its promise.” United Electric, 728 F.2d at 972.
The arbitrator carried out what appears to be a careful and reasonable determination of a plan which would probably have resulted from negotiation under the latter assumption. Expressly conferring on the arbitrator, as the agreement does, the authority to decide the meaning and application of the agreement, necessarily implies the authority to find that there has been a breach of the agreement as interpreted, and, we think, further implies the authority to prescribe a remedy which can be said reasonably to cure the breach. Thus the award was within the range of remedial authority which can reasonably be said to be implied by the contract.
Other remedies did not appear feasible, and Chrysler proposes none; indeed, its position leads to the conclusion that the arbitrator was helpless to provide redress for the Company’s breach, a conclusion not mandated by the agreement or by common sense. Cf. Grigoleit Co. v. United Rubber, Cork, Linoleum and Plastic Workers of Am., Local No. 270, 769 F.2d 434, 440-41 (7th Cir.1985); United Elec. Radio & Machine Workers of Am. v. Honeywell, Inc., 522 F.2d 1221, 1226 (7th Cir.1975) (arbitrators have flexibility in formulating remedies); Mogge v. District 8 Int’l Ass’n of Machinists, 454 F.2d 510, 514 (7th Cir.1971) (where contract is not explicit concerning the proper remedy, arbitrator has wide latitude in fashioning appropriate remedy).
Chrysler challenges the arbitrator’s assumption that the contractual entitlement to six months’ notice of the sale gave the Union bargaining power by withholding consent to a shortening of the notice period. In this challenge, Chrysler relies on this court’s stay and reversal of a preliminary injunction against proceeding with the sale in January, 1984 after only one month’s notice.
This argument rests on an inapt comparison between the premises of the court’s decision and those of the arbitrator’s. This dispute was whether the “sale” was a “closing” under the collective bargaining agreement. That issue had not been resolved when this court decided that Chrysler’s risk of irreparable hardship if it lost the sale opportunity and ultimately won on the merits was much greater than the Union’s risk if the sale occurred and it ultimately won on the merits. Before the arbitrator prescribed the remedy, however, he had reached the merits and determined the Company’s contractual obligation not to sell without six months’ notice.
This court’s two unpublished orders did not, of course, address the merits of the dispute, nor even assess the probability of success. They were plainly based on this court’s evaluation of the respective risks of irreparable injury. The stay order (incorporated also in the final order) suggests that this court perceived an award of (if not agreement on) a severance pay plan as at least a very probable outcome, for it said, at page 5:
Finally, as we previously stated, if Chrysler is not permitted to complete the sale, there is a substantial likelihood that Chrysler will lose large amounts of money greatly in excess of the $1,000 injunction bond filed by the union in this case. After all, in a large commercial transaction such as this, time is sensitive and of the essence. The union members face no such dilemma. If the sale is completed, the Union still has the opportunity to arbitrate severance pay under the collective bargaining agreement against a solvent Chrysler. If the arbitrator finds an award of severance pay to be proper in this instance, then every union member not hired by Bayliner will be entitled to such pay. The arbitrator’s award of severance pay will be in the form of money damages, easily calculable, and within the power of the panel to award. The Union simply cannot complain of irreparable harm if it is remitted to this remedy. Moreover, arbitration may be avoidable since Chrysler has offered to pay in settlement the severance pay proposed by the Union immediately prior to the time the labor contract was signed.
Chrysler further points out that most of the affected employees were hired by Bay-liner, the purchaser of the Hartford plant. Chrysler seems to contend that even if a severance pay plan is an appropriate remedy, it “must be limited to former hourly Chrysler employees who, despite reasonable efforts, have not secured other employment.”
It relies on two decisions which held that pension administrators’ interpretation of employers’ severance pay policies so as not to afford benefits to persons employed by a successor employer did not violate ERISA. Sly v. P.R. Malloy & Co., Inc., 712 F.2d 1209 (7th Cir.1983) and Jung v. FMC Corp., 755 F.2d 708 (9th Cir.1985). These cases involved different situations and have little pertinence here.
ATTORNEY’S FEES
The district court also awarded the Union attorney’s fees incurred to enforce the award, but without any explanation, or finding of bad faith or frivolous litigation. Some courts have held that although § 301 of the LMRA does not provide for the shifting of costs and fees in suits for enforcement of awards, when a challenger refuses to abide by an arbitrator’s decision “without justification,” attorney’s fees and costs may be awarded. See, e.g., Teamsters Local Union No. 764 v. J.H. Merritt & Co., 770 F.2d 40, 43 n. 2 (3rd Cir.1985); Amalgamated Meat Cutters Local Union 540 v. Great Western Food Co., 712 F.2d 122, 125 (5th Cir.1983); Int'l Union of Petroleum & Indus. Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428-29 (9th Cir.1983).
This court has stated that normally when no statute authorizes the award of attorney’s fees “the prevailing party is entitled to attorney’s fees only if his opponent’s suit or defense was frivolous, which our cases define to mean brought in bad faith — brought to harass rather than to win.” Miller, 739 F.2d at 1167. More recently, since the amendment of Rule 11, F.R.Civ.P., we have held that the test under present Rule 11 is objective, and that a finding of bad faith is not essential. See Brown v. National Bd. of Medical Examiners, 800 F.2d 168, 171 (7th Cir.1986) (standard under revised Rule 11 is objective reasonableness under the circumstances). Here there was no finding of bad faith, nor do we see evidence thereof. We do not deem Chrysler’s position so devoid of arguable merit as to warrant sanctions under Rule 11.
The award of attorney’s fees is Reversed, and the judgment is Affirmed in all other respects. Costs on appeal are allowed to plaintiffs.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Florence SHAW, Administratrix of the Estate of Charles Edward Gilbert, Deceased, Appellant, v. Gary F. BOTENS, by his Guardian ad litem, Donald Botens, Defendant, and Nationwide Mutual Insurance Company, Garnishee-Appellee.
No. 17185.
United States Court of Appeals Third Circuit.
Argued Oct. 11, 1968.
Decided Nov. 19, 1968.
Milford J. Meyer, Meyer, Lasch, Hankin & Poul, Philadelphia, Pa. (Louis A. Fine, Honesdale, Pa., on the brief), for appellant.
Hugh J. McMenamin, Warren, Hill, Henkelman & McMenamin, Scranton, Pa. (Walter L. Hill, Jr., Scranton, Pa., on the brief), for appellee.
Before McLAUGHLIN, STALEY and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This appeal seeks reversal of a District Court (1) judgment dated January 16, 1968, for plaintiff against the garnishee (Nationwide Mutual Insurance Company) in the amount of $731.09 (representing interest on $25,000. previously paid by the garnishee on account of plaintiff’s June 30, 1966, judgment against defendant of $33,485.08), and (2) order dated December 19, 1967, sustaining objections of the garnishee to most of plaintiff’s garnishment claim. Plaintiff contends that she was entitled to proceed in the garnishment action to recover $8,485.08, with interest thereon, in addition to the above $731.09.
After trial of this automobile accident persona] injury action, claiming damages under the Pennsylvania Wrongful Death and Survival Acts for the death of a passenger, the judgment of June 30, 1966, for plaintiff was entered. The garnishment proceedings were instituted on December 12, 1966. The background facts and the conclusion of the District Court are summarized in the able District Court opinion, Shaw v. Botens, 278 F.Supp. 226 (M.D.Pa.1968), where the following language appears;
“Pursuant to the insurance contract, defendant was represented by counsel of Nationwide’s choice who was entrusted with all phases of the case from investigation through the post trial motions. Defendant did not have private counsel. Plaintiff offered to settle for the policy limits of $25,000, but Nationwide refused. After denial of the post trial motions, Nationwide paid plaintiff the $25,000.
“Plaintiff then filed a praecipe for writ of execution against defendant. The writ directed the Marshal to attach the property of the defendant in the possession of Nationwide as garnishee. * * *
“Plaintiff contends that Nationwide breached its duty of fair representation by rejecting plaintiff’s offer of settlement thereby subjecting defendant to liability for the deficiency between the judgment and the policy limits; that a claim for the breach lies against an insurer; that the claim is assignable and that the attachment worked an assignment; and that the garnishment and interrogatories under Pennsylvania procedure constitute a pleading which states the cause of action of breach of duty of fair representation. Nationwide contends that there is no debt in the present posture of this lawsuit which is attachable through garnishment; and that in effect plaintiff is attempting to set herself up as a third party beneficiary under the insurance contract, which was not intended by either Nationwide or defendant.
“In Gray v. Nationwide Mut. Ins. Co., 1966, 422 Pa. 500, 223 A.2d 8, the Pennsylvania Supreme Court clearly held that an insured has a cause of action in assumpsit against an insurer which subjects the former to liability by virtue of a breach of the fiduciary duty of good faith representation. In Gray, there was an actual assignment to the injured party of the insured’s rights against the insurer, which the court held to be a proper assignment. The question presented here is whether under the doctrine of equitable assignment and by means of garnishment proceedings, plaintiff is permitted to pursue the same course without an actual assignment.
“Plaintiff has cited no Pennsylvania authorities for her contention and this court has found none. The question which is basic to all others is whether there existed, either actually or potentially, a right or debt of defendant capable of being enforced by plaintiff. This court believes the answer must be that the claim, if it exists, has not matured to the point where it is enforceable through garnishment proceedings.” (278 F.Supp. 227-28)
This is not a case where the plaintiff is making a mere general contention that the insurer has not acted in good faith and with due care, since the record contains, in affidavit form, the following detailed statement of the plaintiff’s principal claim in the execution proceeding:
“4. Upon institution of this action said Insurance Company retained Hugh J. McMenamin, Esquire, to represent both it and the defendant in the action and said attorney did in fact so represent both in the defense of this action;
“5. During the pendency of the primary action and prior to and during the trial thereof offers were made by plaintiff’s attorneys to Mr. Mc-Menamin to compromise and settle the same for an amount within the coverage of the said policy;
“6. At all times aforesaid Mr. McMenamin refused said offers and failed or refused to disclose the amount of insurance coverage under the said policy;
“7. On June 30, 1966, after the trial of the primary action, judgment was entered in favor of the plaintiff and against the defendant in the sum of $33,485.08;
“8. An attachment execution naming the said Insurance Company as garnishee has been issued on the said judgment and served upon it;
“9. By reason of the failure of garnishee to act in good faith in the defense and settlement of the primary action, the defendant therein has incurred a judgment which is in excess of the limits of coverage in the said policy and a cause of action has accrued to the defendant against the garnishee for the amount in which the judgment exceeds the policy coverage;
“10. Plaintiff’s attachment has effected an assignment of the said cause of action from defendant to plaintiff;”
The Pennsylvania Supreme Court has held that the failure of an insurer to comply with its obligation to act in good faith and with due care in representing the interests of the insured constitutes a breach of a contractual obligation “for which an action in assumpsit will lie.” See Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8, 11 (1966). The Gray case held, further, that this contractual obligation was assignable by the insured to a plaintiff having secured a judgment in a personal injury action against the insured.
The Pennsylvania Procedural Rules provide that a writ of execution is available to attach a debt owed by the garnishee to the defendant. See Rules 3101(b) (1) and 3102, 12 P.S.Appendix. As stated in paragraph 6 of the comments to these execution rules, they “provide a method for the attachment of the debt itself” and “The scope of attachment is also enlarged to include tangible or intangible property of the defendant in the custody, possession or control of a garnishee.” Rule 3148(a) provides: “A judgment entered against the garnishee * * * shall (1) be in the form of a money judgment if the garnishee owes a debt to the defendant.”
The Pennsylvania Supreme Court has held that attachment works “an assignment to the plaintiff of the debt due to the defendant from the garnishee.” See In re Boyd’s Estate, 394 Pa. 225, 242-243, 146 A.2d 816, 825 (1958), and cases there cited. The Supreme Court of Pennsylvania has permitted attachment of amounts due under the terms of an insurance policy to a judgment debtor by the plaintiff who holds such judgment. See Boyle v. Franklin Fire Insurance Company, 7 W. & S. 76 (1844); Girard Fire & Marine Insurance Co. v. Field, 45 Pa. 129 (1863) ; Fritchie v. Miller’s Pa. Extract Co., 197 Pa. 401, 47 A. 351 (1900). In the Fritchie case, judgment was recovered by the representative of a minor child of a decedent against his employer. An attachment execution was issued against an insurance company which had insured the employer against all liability for damages on account of injuries suffered by its employees up to the amount of $1500. and which had contested its liability under the policy. The court used this language at page 404 of 197 Pa., 47 A. at page 351, in affirming judgment of liability against the insurance company garnishee:
“The only defense of the insurance company to the case at bar is, (1) that it has not consented to an assignment of any interests of the insured to the plaintiff, and (2) that the insured has not suffered any loss, and therefore cannot give to the plaintiff any better right against the insurer than it would have. The defense, however, is not an answer to the judgment against the insured, nor an obstruction to the issuance of an attachment execution, and a service of the same upon the insurer as garnishee. There is nothing in the policy which would justify a denial to the plaintiff of any rights secured to her, for the use of Maria Fritchie, or in the judgment entered by the court below; nor is there anything in the attachment execution and the service thereof upon the insurer as garnishee, which furnishes any just cause for complaint.”
The District Court’s conclusion that the claim had not matured sufficiently to make garnishment proceedings available because the insured defendant had not taken any steps to assert a claim and the garnishee insurance company had not conceded that it had violated its obligation to act in good faith and with due care in representing the interests of the insured does not appear to be consistent with the foregoing decision in the Fritchie case. The claim became definite and liquidated by the refusal of the insurer to settle prior to the entry of the June 30, 1966, judgment and the entry of that judgment in a definite amount, provided that plaintiff can establish its allegations that such insurer-garnishee failed “to act in good faith in the defense and settlement of the primary action” (par. 9, supra, at page 152).
Furthermore, the Pennsylvania appellate courts have consistently determined the validity of alleged claims against an insurer-garnishee in garnishment proceedings in which such a garnishee has contested (as does the garnishee in this case) its liability under the policy. See, e. g., Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963); Dariano v. Blacksom, 389 Pa. 96, 132 A.2d 186 (1957) ; Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858 (1952).
In making the difficult determination of what ruling the Pennsylvania appellate courts would make in this situation (where there are no cases precisely in point), we agree with appellant that the use of garnishment proceedings in this case is consistent with this language in the Gray case, supra, at page 12 of 223 A.2d:
“If we permit the assignment in eases such as the one at bar, bankruptcy proceedings would be unnecessary; the insured, after a judgment has been rendered against him, can follow the more simple and less expensive procedure of assigning the cause of action against the insurer, directly, to his judgment creditor.”
Also, the following language from the Gray case (page 13 of 223 A.2d) negatives appellee’s contention that the use of the garnishee process to determine the validity of this alleged claim under the policy would defeat “the express purposes of Gray” (page 9 of appellee’s brief):
“As Judge Hoffman so ably reasoned in his dissenting opinion: ‘The fears of the lower court are unwarranted. The possibility of collusion between a judgment holder and an insured is no way increased by an assignment. If the insured’s liability on the judgment is not affected by the assignment, the interests of the parties are similarly unaffected. Whether the action would be brought in the name of the policyholder or in the name of the assignee, the policyholder would be intent upon relieving himself of the excess judgment, and the assignee would be seeking to secure the balance due him. If the insured’s liability is terminated by the assignment, as in the present case, the possibility of collusion is more remote. Having been relieved of the judgment, the insured no longer has any pecuniary interest in the outcome of the litigation.’ Gray v. Nationwide Mutual Insurance Co., 207 Pa.Super. at 10, 11, 214 A.2d at 639. (Dissenting opinion by Hoffman, J., in which Ervin, P. J., and Watkins, J., joined.)
“Permitting an insured to assign his claim to the injured claimant would put the claimant on more of an equal footing with the insured’s insurance company in settlement negotiations without tipping the balance against an insurer who could still refuse to settle in good faith. ‘This result may seem anomalous in that the plaintiff, who previously offered to settle his claim for $5,000, has now acquired the right to maintain against defendant insurer an action which arose by reason of that offer to settle. But it must be borne in mind that plaintiff merely stands in the shoes of the insured; it is the insured who has allegedly suffered the wrong at the hands of the insurer. It might be said that the result reached herein will cause more injured claimants to propose settlement for the policy limit when the insurance company is defending the action against an insured who is apparently judgment-proof. Yet the insurer has nothing to fear so long as its refusal to settle is made in good faith. And it is fundamental that the law favors settlements’. Brown v. Guarantee Insurance Company, [155 Cal.App.2d 679] 319 P.2d 69, 79, [66 A.L.R.2d 1202] (Emphasis added.)”
We conclude that the Pennsylvania garnishment proceeding is available to determine the validity of the alleged claim of the judgment debtor against the garnishee-insurer. The judgment of January 16, 1968, and the order of December 19, 1967, will be vacated and the case remanded to the District Court for further proceedings consistent with this opinion.
. The insurance policy issued by the insurer-garnishee includes virtually identical language to that in the policy before the court in Gray supra (see footnote 2 at 223 A.2d 9), as follows (V (2) at pp. 4-5 of policy attached to Document 27):
“ * * * the Company shall:
“(a) defend with counsel of its choice any suit against a person entitled to protection alleging such injury, sickness, disease or destruction and seeking damages on account thereof. Such suit shall be defended even if groundless, false or fraudulent. The Company may make any investigation, negotiation and settlement of any claim or suit as it deems expedient; sis * * * *
“(d) pay all interest on the entire judgment accruing after entry of judgment until the Company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the Company’s liability thereon; * * * * *
“Payments under this insuring agreement, except settlement of claims and suits, are in addition to the applicable policy limits.”
. Rules 3144 and 3145 of the Pennsylvania Rules of Civil Procedure make clear that the Interrogatories filed by plaintiff, together with the Answers to them, if ordered by the District Court, will constitute the pleadings in the contract action between plaintiff and the garnishee-insurer. The Pennsylvania Rules give ample protection to the defendant as well as the garnishee (Rules 3119, 3121, 3123, 3140, 3143(f), 3147, and 3149) and the Pennsylvania cases make clear that the judgment of June 30, 1966, against the defendant will be satisfied if the garnishee pays the balance due or settles the claim with the plaintiff. See Gretz v. Esslingers, Inc., 428 Pa. 90, 236 A.2d 508 (1967).
. In this case the court used this language at pp. 131-133:
“The same question is presented in each of these cases, and it is whether an unadjusted and unliquidated claim for a loss upon a policy of insurance against fire, is subject to attachment in the hands of the insurance company. * * * The District Court held the claim attachable, and the company brought these writs of error.
“The objection to a recovery for such a reason seems technical in these cases, for there was no difference or dispute about the amount of the loss. It was settled on the proofs presented by the insured, without reference to the arbitrament provided for in the regulations attached to the policy in the case of dispute, or to the jury at the trial. It was settled by calculation, but notwithstanding this, it was insisted here that the claim was in the class of unliquidated damages when the writ was issued, and being so, was not subject to be attached.
“We agree with the District Court in their judgment on the point that it was attachable.
$ * * $ $
“When a loss by fire has taken place, can we doubt but that the sum agreed to be paid by the insurers, in consideration of the premium paid, is prima facie ‘goods and effects,’ and is parcel of the ‘personal estate’ of the defendant? Because it is a chose in action, it is not therefore outside of the meaning of these terms. * * * But the difficulty is not this under the attachment process. It is that the amount is unliquidated, and for this reason it is supposed not to be within the meaning of the act. But this will not hold; otherwise debts due for goods sold and delivered, or work, labour, and services done and performed without the price being fixed, might not be attachable. Barge debts on book-account might escape the process, which I do not believe has ever been considered to be the law.
“ * * * but I think what was said in Fisher v. Consequa, 2 W.C.C.Rep. 382, in defining the foundation of the process, very well defines also to what it may be applied; that is, to ‘a demand arising ex contractu, the amount of which was ascertained, or which was susceptible of ascertainment by some standard referrable to the contract itself, sufficiently certain to enable the plaintiff by affidavit to aver, or a jury to find it, might be the foundation of a proceeding by way of foreign attachment, without reference to the form of action, or the technical definition of debt, the expression used in the law.’ ”
. Neither the District Court nor appellee has referred to any provision in the policy precluding garnishment of this alleged claim. In Gray v. Nationwide Mutual Insurance Company, 207 Pa.Super. 1, 214 A.2d 634, 639 (1965), the Pennsylvania Superior Court cited in its dissenting opinion, which was approved by the Pennsylvania Supreme Court, the many Pennsylvania cases holding that policy provisions against its transfer without the insurer’s consent do not preclude assignment of claims for damages after the loss has occurred and rights under the policy have accrued.
. Estate of Warren L. Loose, Opinion of 1/29/68 (#51,115, O. C. Berks, Pa.), reaches this conclusion. Cases from other jurisdictions on this issue, which have differed in their results, are cited in Meyer, “Gray v. Nationwide and Beyond,” 71 Dick.L.Rev. 257, 260-65 (1967); see, also, Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966); General Guaranty Insurance Co. of Fla. v. DaCosta, Fla.App., 190 So.2d 211 (1966). It is noted that the Pennsylvania Supreme Court has not been impressed by decisions from other states on the subject of attachment. See Girard Fire & Marine Insurance Co. v. Field, supra, where the court said at page 134:
“Authorities in other states were cited on argument, but we derive little light from them, as the attachment laws of the several states differ essentially amongst themselves and from, ours, # * $ ff
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_stid
|
01
|
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.
Garland FIELDS, Appellant, v. UNITED STATES of America, Appellee.
No. 10684.
United States Court of Appeals Fourth Circuit.
Argued Dec. 5, 1966.
Decided Jan. 5, 1967.
Alexander L. Wilson, Arlington, Va. (Court-appointed counsel) for appellant.
Stefan C. Long, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on the brief) for appellee.
Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit Judges.
PER CURIAM:
Convicted, in a trial without a jury, of the offenses of selling narcotics not in pursuance of a written order on a form issued in blank for that purpose by the Secretary of the Treasury and selling narcotics not in the original stamped package, in violation of 26 U.S.C.A. §§ 4705(a) and 4704(a), and sentenced to consecutive terms of eight and two years, respectively, appellant appeals. He alleges as fatal to his conviction denial of a speedy trial, failure to sever, failure to grant a mistrial when a codefendant allegedly essential to appellant’s defense refused to testify, and improper conduct on the part of the trial judge in examining witnesses and erroneously summarizing previous testimony of other witnesses. We find no merit in any contention, and we affirm.
The alleged denial of a speedy trial is predicated on the following facts: The offenses allegedly occurred May 19-20, 1965. A complaint was filed with the United States Commissioner on September 21, 1965 and appellant was arrested that day. At a hearing on September 30, 1965, probable cause was found and appellant was admitted to bail. Because a co-defendant was at large and the grand jury was not in session, an indictment was not returned until December 8, 1965. On December 16, 1965 and January 10, 1966, appellant appeared for arraignment without counsel. Counsel was then appointed by the Court and appellant pleaded not guilty on January 12,1966, waived a jury trial and the date of April 11, 1966 was fixed for trial. The trial was held as scheduled.
True, eleven months elapsed between the date of the alleged offenses and the actual trial, of which eight months was between arrest and trial, but the record fails to disclose a single instance in which appellant was prejudiced by any delay. At all times he was unrestrained, and his freedom to develop witnesses, testimony and matters of defense unhampered. The record reflects no request on his part that he be tried at any earlier date. We find no circumstances amounting to an unconstitutional deprivation of the right to a speedy trial. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Hill, 310 F.2d 601 (4 Cir. 1962).
The alleged improper failure to grant a severance is grounded upon the fact that a codefendant, Corbin, elected to testify in his defense, while appellant did not. Prior to Corbin’s testimony, the government’s case consisted of the testimony of a narcotics agent who purportedly met appellant and his codefendants twice during the days in question and, for $300.00, purchased from them certain narcotics not in or from original stamped packages and not in pursuance of a written order on the form provided by the Secretary of the Treasury, and that of another agent, who testified only that the first agent and the several defendants were seen together at the times and at the places described by the first. Cor-bin’s testimony corroborated the association of the agent and the defendants at the times and places previously testified to, but constituted a denial that Corbin was aware of the nature of the transaction or that the materials delivered to the agent, for which he paid $300.00, were various narcotics. Appellant's counsel at no time, before, during or after Corbin’s testimony, requested a severance for his client.
In a proper case the failure of appellant’s counsel to request a severance would not foreclose our noticing and correcting plain error in the record. Rule 52(b) Fed.Rules Crim.P. But appellant’s claim that he was entitled to a severance on the record in this case is a bald assertion that codefendants may not be tried jointly when one or more of them elects to testify in his own behalf. Cor-bin made no attempt to incriminate appellant, other than to confirm his presence when the alleged illegal action was formulated and carried out. Under these circumstances, we perceive no such rule as that for which appellant contends. We disagree with appellant’s argument that he could not have been convicted on the testimony of the agent alone, because we are not aware of any rule which requires corroboration of the agent’s testimony. Indeed, the district court’s findings of fact with respect to appellant’s guilt indicate that the court relied on the testimony of the agent, uncorroborated by that of Corbin; the district court, in finding Corbin also guilty, rejected the exculpatory aspects of his testimony.
There is no merit in the contention that appellant should have been granted a mistrial when the codefendant, Breed-en, who changed his plea to one count of the indictment from not guilty to guilty four days before the trial, refused to testify. Breeden did in fact testify in regard to an aspect of appellant’s defense, albeit, unfavorably. Breeden was called as a witness by counsel for Corbin for the limited purpose of identifying and explaining a letter, which he admitted he wrote, purportedly exculpating appellant and Coibin. Prior to his being called, and düring the course of his limited examination, counsel for Corbin twice asked that Breeden be made a witness for the court, and counsel for appellant raised no objection if, indeed, some of his remarks might not be construed as joining in the request. During his limited examination, Breeden testified that he was unable to say that a statement in his letter that Corbin and appellant had nothing to do with the “actual sale” referred to the sale for which appellant was prosecuted. Later, when made a witness for the court, and asked to describe in his own words what took place on May 19-20, Breeden, although instructed by the court and his counsel to answer, refused to testify further. Again, before, during and after Breeden’s testimony, appellant’s counsel did not request a mistrial.
Although we can notice plain error, we find none in the failure to grant a mistrial. That a witness testifies unfavorably, or even that his testimony is different from that which is anticipated, does not indicate the necessity for such relief in the circumstances reflected by this record.
There was no improper conduct on the part of the trial judge in examining witnesses, and there were no errors of any consequence in his summarization of previous testimony of other witnesses. In regard to this contention, we have reviewed the record thoroughly.-- To the extent that the trial judge erroneously summarized previous testimony of other witnesses, he was, in most part, corrected by counsel, the witnesses themselves, or by his asking further questions. Nothing in the district judge’s finding of facts in which he found appellant guilty discloses any misunderstanding of any essential fact. His exercise of his right to interrogate witnesses, in this non-jury case, was nothing more than an effort on his part to clarify his own understanding of the case and to elicit potentially material facts not inquired into by any of counsel. His calling Breeden as a court witness was in response to the twice repeated request of counsel for one of the codefendants, and in the face of the announced refusal of the prosecution to call him and the announced reluctance of counsel for any defendant to call him. The trial judge’s admonitions to Breeden that he must testify and that he must tell the truth, under penalty of perjury if he did otherwise, appear to be no more than a conscientious effort to carry into effect the advice given by the court, and concurred in by Breeden’s counsel, that Breeden could not claim self-incrimination in the area inquired into. In short, the conduct of the trial judge did not exceed the proper bounds of his function, as set forth by us in United States v. Godel, 361 F.2d 21 (4 Cir. 1966), and Simon v. United States, 123 F.2d 80 (4 Cir. 1941), cert. den. 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941).
The judgment of the lower court is
Affirmed.
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_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.
STATE CORPORATION COMMISSION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, and Missouri Pacific Railroad Company, Intervenor-Respondent.
No. 86-2470.
United States Court of Appeals, Tenth Circuit.
Dec. 5, 1989.
Publication Ordered Jan. 31, 1990.
Frank A. Caro, Jr., Gen. Counsel, and Glenda L. Cafer, Asst. Gen. Counsel, Kan. Corp. Com’n, Topeka, Kan., for petitioner State Corp. for State of Kan.
Robert S. Burk, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, and Evelyn G. Kitay, Interstate Commerce Com’n, Washington, D.C., for respondent Interstate Commerce Com’n.
Charles F. Rule, Asst. Atty. Gen., Catherine G. O’Sullivan and David Seidman, Dept, of Justice, Antitrust Div., Washington, D.C., for respondent U.S.
Joseph D. Anthofer, Gen. Atty., Omaha, Neb., for intervenor-respondent Mo. Pacific R. Co.
T.L. Green, T.L. Green & Associates, P.A., Topeka, Kan., filed an amicus curiae brief for Northeast Kan. Rail Users Ass’n.
Before McKAY and BRORBY, Circuit Judges and BOHANON, District Judge.
The Honorable Luther Bohanon, Senior United States District Judge for the Eastern, Northern and Western Districts of Oklahoma, sitting by designation.
BOHANON, Senior District Judge.
The State Corporation Commission for the State of Kansas (“KCC”) seeks review of an order of the Interstate Commerce Commission (“ICC”) which granted the Missouri Pacific Railroad Company (“MP”) the right to abandon 66 miles of track. KCC is primarily challenging several findings of the ICC and the sufficiency of the underlying evidence.
In accordance with 49 U.S.C. § 10903, MP filed an application with the ICC in December 1985. The application was revised in March 1986 seeking abandonment of 66 miles of railway between milepost 337.8 near Parnell and milepost 403.8 near Vliets in Atchison, Jackson, Nemaha, and Marshall Counties, Kansas. In addition to a protest filed by KCC, twenty-six protests and objections to the abandonment were filed.
On February 10, 1986, the ICC instituted an investigation into the application and set the proceeding for handling under the modified procedure. The ICC also reversed a prior order and instructed MP to submit data concerning overhead or bridge traffic.
Evidence and arguments were presented to the ICC. Several interested parties filed verified statements concerning the impact of the potential abandonment of the track on the local economy and of other potential hardships on the area. Also, MP presented evidence relating to the income and the losses resulting from the operation of the line.
The primary issue is whether the ICC’s decision to allow MP to abandon the line segment involved here was proper. The Administrative Procedure Act sets forth the standard of review as follows: “The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law_” 5 U.S.C. § 706(2) (1977). Since the ICC’s decision is presumptively valid, this court’s review of the decision is limited to a determination of whether there is sufficient evidence to support the decision. Curtis, Inc. v. ICC, 662 F.2d 680, 685 (10th Cir.1981). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Id. Based on this standard of review, we must affirm the ICC’s decision.
Bridge or Overhead Traffic
The first argument that KCC sets forth is that the trial court erred in failing to consider revenues from the transportation of bridge or overhead traffic over the subject line. After considering the evidence, the ICC determined that “the bridge traffic is irrelevant to the abandonment of the line at issue here." We agree with this determination.
The ICC determined that the overhead traffic could be effectively moved over a parallel line between Frankfort and Kansas City via Topeka. Thus, MP's revenues for the subject line would be unaffected by the revenues from the overhead traffic. If revenues are unaffected by abandonment, they should not be considered when determining to what extent a section of line is profitable. Illinois v. ICC, 722 F.2d 1341, 1345-46 (7th Cir.1983). "[L]ocal shippers who are unable to support a railroad cannot demand continued rail transportation simply because the branch is used for movement of through traffic which could be handled as expeditiously over other routes." Illinois v. ICC, 698 F.2d 868, 873 (7th Cir.1983), quoting Baltimore Ohio Railroad Co. Abandonment, 354 I.C.C. 240, 244 (1978).
Revenue Evidence
KCC argues that the ICC created a presumption that MP's revenue statistics were correct and improperly accepted actual transit revenues for the six months of 1985 as rebuttal. We cannot find that the ICC created a presumption in favor of MP that its statistics were correct. In a detailed discussion the ICC found that the protestants' figures were flawed or were presented without an explanation of the underlying facts on which they were based. For example, KCC included revenues from overhead traffic in its operations revenues. Thus, KCC's figures were defective. Two of the protestants submitted figures which also showed a loss to MP making it irrelevant whether those two protestants' figures were accepted over IVIP's figures. Further, the ICC did not accept MP's figures for the investment return on locomotives.
The ICC allowed MP to substitute actual figures for the last six months of 1985. MP had originally submitted only estimates since the actual figures were unavailable. KCC argues that this decision constituted reversible error but concedes that actual figures are preferable to estimates. Further, the actual figures were higher than KCC's figures, and KCC has not argued that the actual figures were inaccurate. If the agency did commit an error, it did not prejudice KOC to its detriment and was thus harmless.
Alternate Transportation
KCC argues that the agency erred in finding that adequate alternate transportation was available. The KCC agrees that trucking is the only real alternative available. Only two to three percent of the grain from the area is transported by rail; the remaining grain is transported by trucks. None of the elevators contended that the abandonment would result in their closure. The court found trucking was an adequate alternative.
KCC cites Georgia Public Service Commission v. United States, 704 F.2d 538 (11th Cir.1983), in support of their position. We agree that to have meaning, "adequate alternative transportation" must be interpreted to require transportation which is both logistically and economically feasible. Unlike Georgia Public Service where there was virtually no evidence to support a finding of alternative transportation, here there is substantial evidence to support the agency's finding. The protesting elevators' answers to MP's interrogatories indicate that the elevators regularly used motor service and that there existed at least six grain-hauling motor carriers in the area. None of the protesting elevators indicated that the abandonment of the line would result in closure of the elevator. Also between 97 and 98 percent of the grain is presently transported by motor carrier. In light of the evidence, the agency did not err in finding that adequate alternative transportation exists.
Impact on Involved Communities
KCC also argues that the agency erred in finding that the abandonment would have no serious adverse effect on the communities involved. KCC substantially makes the same argument that it did regarding adequate alternative transporta- tion; since no alternative transportation exists, the abandonment will have a serious adverse impact on the communities involved. We addressed KCC’s argument earlier.
The agency considered the additional costs to the counties for upkeep and repair of roads and bridges. The MP averred that the costs proposed by the protestants were speculative and unsupported by the evidence. The speculative nature of the evidence is confirmed by the disparity among the protestants’ estimates.
The agency also considered environmental issues and labor protection to evaluate the impact of the abandonment on the communities. KCC has not alleged that the agency’s findings regarding these two factors were in error. The agency’s decision regarding the impact on the communities involved is supported by substantial evidence.
Perfection for Abandonment
Lastly, KCC argues that the ICC erred in finding that MP did not perfect the line for abandonment. KCC urges that MP deliberately downgraded the line for abandonment by not matching motor carrier rates, by offering certain alternate routings, and by allowing car shortages to occur. The agency correctly found that MP did not perfect the subject section of line for abandonment.
MP was not required to set rates competitive with those of motor carriers. The truck distances are shorter than the rail distances and many of the trucks are owned by the owner-operators who do not have terminal costs. Given these facts, MP has not been able to provide rates which are competitive with the motor carrier. Further, there was no showing that if MP had provided rates at or near the level of motor carrier that MP would have made a reasonable profit on the subject line.
MP presented plausible reasons for its routing decision and car usage. Further, routing and car usage are discretionary management decisions. Given the business reasons for MP’s routing and car usage decisions, we cannot say the agency incorrectly found that MP did not perfect the line for abandonment.
Conclusion
A decision to allow an abandonment involves balancing “ ‘[t]he benefits to particular communities and commerce of continued operation [against] the burden thereby imposed upon other commerce.’ ” Georgia Public Service Commission at 541, quoting Colorado v. United States, 271 U.S. 153, 168, 46 S.Ct. 452, 455-56, 70 L.Ed. 878 (1926). In determining whether abandonment is proper, the agency must consider the profitability of the line as well as the affect on the communities involved. “Where there is substantial support in the record for the Commission’s findings, it is not the court’s function ‘to substitute its own conclusions for those which the Commission had fairly drawn from such findings.’ ” Illinois v. ICC, 698 F.2d at 871, quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). Here there is substantial support for the agency’s decision.
It is apparent from the agency’s written opinion that it carefully considered the relevant factors and then balanced the competing interests. The agency then decided that abandonment of the line was proper. The ICC’s decision was in accord with the evidence and the law, and we must affirm.
. In the original application filed in December 1985, MP sought to abandon 71.5 miles of track. In the revised application, MP sought to abandon only 66 miles of track.
. Bridge or overhead traffic is traffic which does not originate or terminate at a point on the 66 miles of the subject railway.
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_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.
Donald VROMAN, a Minor, by James R. Vroman, his next friend, PlaintiffAppellee, v. SEARS, ROEBUCK & CO. and George D. Roper Corporation, Defendants-Appellants.
No. 17216.
United States Court of Appeals Sixth Circuit.
Nov. 24, 1967.
Rehearing Denied Jan. 24, 1968.
Louis A. Lehr, Chicago, 111., for appellants, George E. Bushnell, Jr., Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., Arnstein, Gluck, Weitzenfeld & Minow, Chicago, 111., on brief.
Philip C. Kelly, Jackson, Mich., for appellee, Kelly, Kelly & Kelly, Jackson, Mich., on brief.
Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.
JOHN W. PECK, Circuit Judge.
This action was brought by the plaintiff-appellee to recover damages for personal injuries suffered by him when in the operation of a gasoline powered rotary lawn mower. The mower had been sold by defendant-appellant Sears, Roebuck & Co. under its trade name “Craftsman,” and had been manufactured by its wholly owned subsidiary, the defendant-appellant George D. Roper Corporation. The parties will herein be referred to as they were in the trial court, and the corporations as “Sears” and “Roper” respectively.
At the time of the occurrence giving rise to this action, the then seven year and two months old plaintiff was operating a mower which had been purchased almost exactly three years earlier from Sears by his grandfather. Some months prior to the accident, the grandfather gave the lawn mower to plaintiff’s uncle, who operated a gasoline service station at Homer, Michigan. Plaintiff was cutting grass at this service station when he suffered the injury complained of. The lawn mower was not self-propelled, and moved only when and to the extent that it was pushed by the operator. It is conceded by the parties and here determined that the law of Michigan is applicable. This obviates the need for discussion of the lack of privity of contract between the plaintiff and the defendants, which might elsewhere have been urged as a defense. Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309 (1939); Bosch v. Damm, 296 Mich. 522, 296 N.W. 669 (1941); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Comstock v. General Motors Corp., 358' Mich. 163, 99 N.W.2d 627 (1959); Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich. 235, 109 N.W.2d 918 (1961); Hill v. Harbor Steel & Supply Corp., 374 Mich. 194, 132 N.W.2d 54 (1965); Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 133 N.W.2d 129 (1965).
The evidence establishes that the mower was operated over a ball of wire, and that a piece of the wire entered the left eye of the plaintiff, resulting in permanent loss of sight in that eye. The roll or ball of wire was received in evidence, and unrebutted testimony established that a bit of wire of similar nature was removed from plaintiff’s eye. The wire is a fine copper wire of the general type used in winding small transformers or armatures. While there is some testimony indicating that at the time of the accident it was in a loose roll about the size of a basketball, in size it now more nearly resembles a small, flat skein of knitting yarn.
Trial of the cause to a jury resulted in a verdict for plaintiff in the amount of $75,000 and this appeal has been perfected from the judgment entered thereon. The parties are in agreement as to the questions presented by the appeal, the first of which is whether the District Court erred in submitting the issue of alleged negligence to the jury. Such alleged negligence related, first, to Sears’s failure to warn that foreign objects could be expelled from the mower’s discharge chute and, second, to the alleged improper design of the machine.
In support of its contention that no warning was given, plaintiff first offered and there were received in evidence copies of four Sears’s advertisements which appeared in Detroit newspapers of identical or similar lawn mowers which contained no warnings of any kind. However, these were received in evidence without any showing that plaintiff’s grandfather (the purchaser of the mower here in question) ever saw any such advertisement and the objection to their introduction was well taken. Without relying on this further circumstance as a ground for such exclusion, it is observed that a newspaper advertisement setting forth the possible dangers to users of the product sought to be sold would be unique. However, a failure to warn was established separately by the grandfather, who testified that no warning was given him at the time of purchase and that the mower was not accompanied by any instructions or safety rules other than the verbal instructions of the salesman as to how to start and stop it.
The grandfather further testified that when the mower was in operation “you wouldn’t want to get hit with anything that was underneath it coming out of [the discharge chute].” He testified that when he turned the mower over to his son he told him of this danger, and that the son knew of it “because he had run a mower before. * * * ” The record then establishes that that son (plaintiff’s uncle) and plaintiff’s parents discussed his using the mower to cut grass “to earn a little extra money,” and that they “instructed him on the general use of the lawn mower and, of course, told him to stay away from the discharge chute and showed him how to push it.” The uncle and the parents both together and separately instructed the plaintiff in the mower’s operation, it being recognized that such operation was “dangerous, everyone knows that.” Plaintiff’s uncle further testified as follows:
“A. We watched him, I know, the first time he used it, you know, to get him started, and he seemed to be able to manage it all right.
“Q. Now, when you were telling him these things, did you tell him when he was in the station or at your house or at his folks house or did you show him—
“A. We demonstrated to him on the lawnmower.
“Q. That is it. Thank you. It takes me a long time to get the question out but that is it. You demonstrated it to him on the lawnmower?
“A. Yes, that is right.
“Q. Will you step down, sir, with this lawnmower and show the ladies and gentlemen of the jury and the rest of us — let me turn it around so that you are full face — where you told Donald to stand when he was operating it?
“A. Stand behind the lawnmower so that you don’t get hit from anything coming out of the exhaust chute or discharge chute.”
In the light of this testimony and the record as a whole it is clear that the plaintiff himself, his grandfather (who purchased the mower), his parents and the uncle under whose direction he was ostensibly working when injured all knew of the danger existing by reason of the possible projection of foreign objects from the discharge chute, and any additional warning given to any or all of them would have been merely cumulative and thus without legal significance. See Morrocco v. Northwest Engineering Co., 310 F.2d 809, 810 (6th Cir. 1962); Sawyer v. Pine Oil Sales Co., 155 F.2d 855 (5th Cir. 1946); Hobart v. Sohio Petroleum Company, 255 F.Supp. 972 (N.D.Miss.1966); Pedroli v. Russell, 157 Cal.App.2d 281, 320 P.2d 873, 876 (1958). Plaintiff offers no clue as to the manner in which a warning to his grandfather of a danger already known to him three years prior to the occurrence in controversy could have been a proximate cause thereof, and we hold that it could not.
Had the court’s instructions to the jury been inconsistent with this conclusion they would have been prejudicially erroneous, but such is not the case. On the contrary, the court’s charge included the following:
“You are instructed that there is no duty to warn a person of a danger in the operation of a product when such danger is already known to the user. “Therefore, even though you find there was a danger present in the operation of the lawn mower involved in this action, which danger caused an injury to the plaintiff, I charge you that there was no duty on the part of defendants to warn of this danger, and I charge you that you may not find any liability based upon the defendants’ failure to warn plaintiff, if you find that such danger was already known to the plaintiff herein.”
As has been indicated, the record affirmatively discloses that plaintiff’s older relatives had pre-existing knowledge of the danger, and that this seven year and two months old boy also had such knowledge. Having thus had before it only this unchallenged evidence and the trial judge’s correct statement of the applicable law, the jury could not have resolved this issue negatively to the defendants. See: Delahunt v. Finton, 244 Mich. 226, 221 N.W. 168 (1928); Hoholik v. Metropolitan Life Ins. Co., 289 Mich. 242, 286 N.W. 228 (1939); Deffenbaugh v. Interstate Motor Freight Corp., 254 Mich. 180, 235 N.W. 896 (1931). Carrying this line of reasoning a step further, it may be said that this combination of proven fact and statement of law was tantamount to an instructed verdict on this issue, and standing alone the error in receiving the newspaper advertisements and other evidence of a lack of warning would therefore not have been prejudicial. Whether in cumulative effect with other error prejudice resulted will be subsequently determined.
We pass to a consideration of the second aspect of the first question presented by this appeal, namely whether the court erred in submitting to the jury the issue of alleged breach of implied warranty or negligence in the design of the mower. At the outset of this phase of our discussion, we point out counsel and the trial judge throughout the briefs and the instructions properly use such phrases as “breach of implied warranty” and “negligence of design” synonymously and interchangeably in context, since under Michigan law even though a plaintiff may claim “under the theory of an implied warranty, the real question is whether or not defendant was negligent.” Ebers v. General Chemical Co., 310 Mich. 261, 275, 17 N.W.2d 176, 181 (1945); Hertzler v. Manshum, 228 Mich. 416, 423, 200 N.W. 155, 157 (1924); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 12o, 90 N.W.2d 873 (1958). In the present case there is no question of any mechanical or physical failure or malfunction of the device, the mower having been in the same state of repair after as prior to the accident. Thus as a matter of both fact and law any breach of implied warranty which may have occurred must of necessity have resulted from some fault, or negligence, in its design.
It accordingly becomes apparent that the duty allegedly breached by the defendants was the production and marketing of an unsafe or dangerous device which in normal operation might reasonably be expected to result in injury to its user. In order to make a determination as to whether such a breach occurred it obviously becomes necessary to provide the trier of fact with a standard against which to make a comparison. In such a situation it is at least not unusual for the party bearing the burden of proving such a breach to offer evidence as to the state of the art at the time of the design, manufacture and sale of the device in question. E. g., Cheli v. Cudahy Bros. Co., 267 Mich. 690, 255 N.W. 414 (1934); Ketterer v. Armour & Co., 247 F. 921, L.R.A.1918D, 798 (2d Cir. 1917); Reynolds v. Security Trust Co., 246 Mich. 670, 225 N.W. 575 (1929); Purkey v. Sears, Roebuck & Co., 220 F.2d 700 (5th Cir. 1955); McMeekin v. Gimbel Bros., Inc., 223 F.Supp. 896 (W.D.Pa.1963). In the case now before us the court in its charge made reference to the “state of the industry art,” but both the record and a colloquy following the court’s charge and prior to submission of the case to the jury disclose that the state of the art was not established by evidence. In that exchange between the court and counsel, the following appears:
[Attorney for plaintiff]: * * * “I object to the instruction requested by the defendants that no one can be held to a higher degree of care than the standards in the industry and that, if not substantially different that [sic] the other mowers, that is this mower in suit, then the jury must find for the defendants, for the reason that there is no evidence in the case as to the standards in the industry from which the jury could find any industry standards, and again further repetition that the jury must find for the defendants, as being error and prejudicial to the plaintiff. (Emphasis supplied.)
“The Court: Did I correctly understand you in saying that there is no testimony in the case upon which the jury could find any standard in the industry?
[Attorney for plaintiff]: “Yes, you did, your Honor. That is, at the time the mower was made and sold.”
This colloquy, as well as the record itself, clearly discloses that in lieu of providing the jury with a state of the art criterion plaintiff offered to it descriptive material promulgated by the American Standards Association at the behest of the Lawn Mower Institute, Inc. (later known as the Outdoor Power Equipment Institute, Inc.). In connection with these standards, the trial court charged as follows:
“There were received in evidence American Standard Safety Specifications for power lawn mowers which were not formally adopted until 1960, some two or more years after the design and manufacture of this lawn mower. I charge you that these defendants are chargeable only with such information of developments in the field of safety and design as were available to them at the time of the manufacture, and you may consider these standards on that issue only if you find as a matter of fact, from the evidence, that such standards were circulated and known to the defendants, or could have been known by them by the exercise of due care at and before the time this particular mower was designed and manufactured.
“I charge you that since the American Standard Safety Specifications for power lawn mowers are intended as a guide to manufacturers, the consumer and the general public, and that the existence of an American Standard does not in any respect preclude any party who has approved the standard from manufacturing, selling or using products, processes or procedures not conforming to the standard, and that American Standards are reaffirmed or revised to meet changing economic conditions and technological progress. The Standards are not binding upon anyone whether or not that individual or company has approved the standard, and, therefore, are not binding on either of the defendants in this case. However, while the standards are not binding on the defendants, the jury may consider them on the issue of determining whether the defendants observed their duty of keeping abreast of and being informed of developments in the field of safety in the design and manufacture of rotary power mowers such as the one here involved.”
An issue for jury determination, as the court phrased it in its charge, “as to whether defendants observed their duty of keeping abreast of and being informed of developments in the field of safety in the design and manufacture of rotary lawn mowers such as the one here involved” was created when plaintiff offered evidence tending to show what the defendants knew or should have known about the then existing ASA specifications. Had plaintiff contented himself with such showing no problem would exist in this regard. However, plaintiff did not stop there but went on to offer in evidence the subsequently promulgated ASA standards.
The defendants objected strenuously to the receipt of the standards in evidence. Their first objection was based on the fact that, as shown from the foregoing quotation from the court’s charge, these specifications were not in existence at the time of the manufacture and sale of the subject mower. Treating with the converse of this situation and speaking for the Tenth Circuit Court of Appeals, Judge Murrah stated:
“[A]ppellants complain of the refusal of the trial court to admit certain other rules and regulations of the Liquified Petroleum Administrator of the State. These rules were promulgated * * * after [the butane system which exploded was installed]. Obviously, the rules and regulations were not in force at the time of the installation and were not admissible as evidence on the issue of negligence.” Franklin v. Skelly Oil Co., 141 F.2d 568, 572, 153 A.L.R. 156 (10th Cir. 1944).
In the portion of the charge above set forth the court presented an accurate statement of the law with reference to the consideration to be given to specifications recognized by an industry and available to designers, manufacturers and vendors of devices dealt with therein. However, it failed, in our view, to provide an adequate instruction (if, indeed, this is possible, which is subject to doubt) concerning a publication promulgated subsequent to sale. A corollary vice exists in the difficulty (again, if not the impossibility) of eliminating from the minds of the jurors the persuasive weight of these documents in their published form, in which they possess all of the attributes of impressive scientific treatises. Further, the exhibits are not limited to portrayals of a mower such as that used by this plaintiff, but invite improper comparison by, for example, depicting mowers where the discharge chute is in front of both right wheels instead of between them, as was the case with this mower. Aside from other objections urged with reference to these exhibits, which are not here passed upon, it is determined that they were improperly received in evidence for the reasons stated.
While we would have scant hesitation in holding the error in receiving the ASA specifications in evidence to be prejudicial, beyond doubt their receipt coupled with that of the improperly received newspaper advertisements and other evidence of a lack of warning of the dangerous potentialities of the lawn mower cumulatively constituted prejudicial error incapable of cure by any charge.
Reversed and remanded for a new trial.
EDWARDS, Circuit Judge
(dissenting).
The undisputed facts indicate that this then seven-year-old plaintiff lost his left eye when a piece of copper wire penetrated it while he was operating a power lawn mower. Plaintiff testified that at the time he was “pushing” the mower and that it stopped immediately after? ward. Since wire similar to that found in the boy’s eye was found wrapped around the mower blade after the accident, the jury was certainly entitled to infer that the fragment which put out plaintiff’s eye came from the mower.
Defendants admit that they designed, manufactured and sold the particular lawn mower involved.
Plaintiff’s evidence showed that the placement of the discharge chute on the mower and the length of the mower blade made it possible for an object thrown therefrom to be thrown rearward toward the operator’s position so as to pass within nine inches of the right end of the operator’s handle.
On this record it was certainly permissible for the jury to infer that defendants, knew, or in the exercise of reasonable care should have known, of this dangerous condition and that plaintiff did not.
Plaintiff pled negligent design of the mower. Plaintiff also pled and at the trial offered evidence to prove defendants’ knowledge of and failure to warn mower users and purchasers of this hazardous condition at any time prior to the happening of this accident.
This case is a diversity case tried under Michigan law. Under Michigan law a manufacturer of a dangerous instrumentality has a continuing duty to take “all reasonable means to convey effective warning” of a latent defect in a product where the manufacturer has knowledge of the defect but the users do not. This duty continues even after the product has been sold and put in use. Comstock v. General Motors Corp., 358 Mich. 163, 176, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959).
The appellate issue of substance is appellant’s claim that the trial judge’s receipt in evidence of a set of standards issued by the American Standards Association applicable to lawn mower design represented prejudicial error. The standards as actually approved were approved and printed after this lawn mower was sold but before the injury involved here. These facts were fully developed before the jury, as was a good deal of evidence about the processes by which these standards were prepared and the opportunities which the defendants had to become familiar with them during their formative stages.
The mower in dispute was designed in 1957. This particular mower was sold June 11, 1959. The injury occurred June 18,1962.
The A.S.A. project for safety Specifications for Power Lawn Mowers B71.1 was approved March 15, 1955. On the same date A.S.A. confirmed the initiation of this project to Newark Stove Company — a wholly-owned subsidiary of defendant Sears, Roebuck & Co.
On April 4, 1955, Newark Stove Company wrote A.S.A. expressing their “extreme interest” in the proposed safety code.
Subsequently, on January 19, 1956, A. S.A. invited Newark Stove Company to attend the first meeting, but Newark did not attend. Such invitations were repeated and declined by Newark.
On May 20, 1958, the relevant safety standards which would have corrected the hazardous design of the subject mower were drafted. They were approved without material change by A.S.A. June 23, 1960.
Defendants deny seeing the standards in draft form. But the standards were widely published after the date of sale of this lawn mower — but well before the date of plaintiff’s injury.
The District Judge actually charged in effect that the jury could not employ the A.S.A. standards as ultimately approved in determining whether or not failure to comply with them was evidence of negligent design, in view of the fact that the approval followed rather than preceded the manufacture of the offending instrumentality. Appellants, of course, claim that this instruction did not succeed in curing the error of allowing the standards to be placed before the jury at all.
Under Comstock v. General Motors, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959), the failure of a manufacturer to take all reasonable means to warn users of a product of a latent defect in that product which renders it a dangerous instrumentality is evidence from which a jury may infer negligence:
“Buick division subsequently learned in fact that they had built thousands of power brakes with a defective part. The facts pertaining to furnishing of replacement kits and assumption of costs allow no other inference than that defendant had ample warning of a serious problem concerning the 1953 Buick power brakes well before the brakes involved here failed.
“Defendant’s Buick division warned' its dealers. It did not warn those into whose hands they had placed this dangerous instrument, and whose lives (along with the lives of others) depended upon defective brakes which, might fail without notice.
“In our view, the facts in this case imposed a duty on defendant to take all reasonable means to convey effective warning to those who had purchased 1953 Buicks with power brakes when the latent defect was discovered.
“The duty to warn of known danger-inherent in a product, or in its contemplated use, has long been a part of the manufacturer’s liability doctrine. Clement v. Crosby & Co., 148 Mich. 293, 111 N.W. 745, 10 L.R.A., N.S., 588; [12 Ann.Cas. 265]; Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48, 48 L.R.A.,N.S., 224 [4-
N.C.C.A. 254]; Lovejoy v. Minneapolis-Moline Power Implement Co., 248 Minn. 319, 79 N.W.2d 688; Hopkins v. E. I. Du Pont De Nemours & Co. (C.C.A. 3), 199 F.2d 930; Tomao v. A. P. DeSanno & Son, Inc., (C.C.A. 3), 209 F.2d 544; Haberly v. Reardon Company, (Mo.), 319 S.W.2d 859.
“See, also, Annotation, Duty of manufacturer or seller to warn of latent dangers incident to article as a class, as distinguished from duty with respect to defects in particular article, 86 A.L.R. 947.
“In the Gerkin Case, this Court said (177 Mich. p. 60, 143 N.W. p. 53):
“ ‘When the fact is once established and demonstrated by experience that a certain commodity apparently harmless contains concealed dangers, and when distributed to the public through the channels of trade and used for the purposes for which it was made and sold is sure to cause suffering to, and injure the health of, some innocent purchaser, even though the percentage of those injured be not large, a duty arises to and a responsibility rests upon the manufacturer and dealer with knowledge to the extent, at least, of warning the ignorant consumer or user of the existence of the hidden danger. Failing to do so, the dealer, as well as the manufacturer, who has the knowledge and does not impart it, is liable to a subsequent, ignorant purchaser, reasonably within contemplation of the parties to the original sale, for injuries sustained through such hidden dangers. This is by reason of the duty the dealer owes to the public generally, which includes all whom it may concern, to give notice of any concealed dangers in the commodity in which he traffics, and to exercise a reasonable precaution for the protection of others commensurate with the peril involved. We think this principle applicable to the case at bar and fairly deducible from the many authorities touching manufacture and sale of dangerous commodities. Thornton v. Dow, 60 Wash. 622 (111 P. 899, 32 L.R.A.,N.S., 968), and authorities cited and reviewed in Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A.,N.S., 923.
“If such duty to warn of a known danger exists at point of sale, we believe a like duty to give prompt warning exists when a latent defect which makes the product hazardous to life becomes known to the manufacturer shortly after the product has been put on the market. This, General Motors did not do.” Comstock v. General Motors Corp., 358 Mich. 163, 176-178, 99 N.W.2d 627, 634 (1959).
The Comstock case was decided by a unanimous Michigan Supreme Court. It has been the subject of an annotation in American Law Reports. See 78 A.L.R.2d 449 (1961). It has never been overruled.
Nor is its doctrine strange to Michigan. In an annotation entitled Products Liability — Duty to Warn, wherein Comstock is cited as Michigan authority, we find this statement:
“That the duty of ordinary or reasonable care which lies at the foundation of the law of negligence commonly comprehends a duty to warn of danger, the nonperformance of which will,, when it is the cause of injury, give rise to liability is, of course, a legal truism. There is not a case falling within the scope of this annotation which in any way contradicts this principle.” 76 A. L.R.2d 16 (1961). (Footnotes omitted).
Defendants in this case concede that they gave no warning at all at any time.
Under the Comstock doctrine just set forth, it appears to me that the industry safety standards set by A.S.A. were admissible in evidence where those standards were published well in advance of plaintiff’s injury.
In addition, in view of the strong evidence of gross negligence in design of this mower and the trial judge’s restrictive instruction as to the use the jury could make of the evidence pertaining to the A.S.A. standards, I believe there was no prejudicial error in this trial which adversely affected substantial justice. Fed.R.Civ.P. 61.
I would affirm the jury verdict.
We are acutely aware of the evidence establishing that the placement of the discharge chute made it possible for an object therefrom to pass within nine inches of the right end of the operator’s handle. Whether evidence of such proximity alone not supplemented by evidence of the position an operator might reasonably be expected to take in normal operation is enough to permit the negligence of design issue to go to the jury in the face of the argument that to do so is to let the jurors enter the area of speculation is an issue we are not here required to pass upon.
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_method
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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 determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
BARON TUBE COMPANY, the partnership of Hyman Baron and Jay Baron and Hyman Baron, Individually, Appellants, v. The TRANSPORT INSURANCE COMPANY et al., Appellees.
No. 22680.
United States Court of Appeals Fifth Circuit.
Aug. 3, 1966.
Burt DeRieux, Greene, Neely, Buckley & DeRieux, James A. Eichelberger, Atlanta, Ga., for appellants.
James L. Norton, Tom Alexander, Houston, Tex., Jonathan Day, of Butler, Binion, Rice, Cook & Knapp, Houston, Tex., Tom Rice of Nall, Miller, Cadenhead & Dennis, Atlanta, Ga., of counsel, for appellees.
Before TUTTLE, Chief Judge, BROWN, WISDOM, GEWIN, BELL, THORNBERRY, and COLEMAN, Circuit Judges, En Banc.
GRIFFIN B. BELL, Circuit Judge.
This appeal arises out of a third party negligence action. A jury verdict and judgment thereon was rendered for plaintiffs-appellees in the sum of Seventy-five Thousand Dollars. Appellants moved for judgment notwithstanding the verdict, and in the alternative for a new trial. This appeal is from the order overruling these motions. We affirm.
Plaintiff James W. Lockmiller, a resident of the State of Texas, was a truck driver employed by Bell Transport Company. Defendant Baron Tube Company is a partnership with its office and principal place of business in Atlanta, Georgia. On the evening of January 17, 1959, Mr. Lockmiller was dispatched to Baron Tube Company’s pipe yard in Houston, Texas, to pick up a load of “hot pipe” for immediate delivery to an oil well site in Louisiana. He reached the yard at ten o’clock p. m. To compensate for the lack of overhead lighting and the absence of flood lights on the gin pole truck, a makeshift arrangement of lights from vehicles was devised to illuminate the working area. Shortly after the loading operation commenced, the gin pole operator in charge of lifting the pipe, an employee of Houston Hauling Company, shut down his rig because one of Baron’s employees who was helping with the loading appeared to be intoxicated. Mr. Lockmiller took this man’s place as the forward “hooker.” In the course of the subsequent loading operation, a pipe came loose and Mr. Lockmiller, attempting to avoid the pipe by stepping backward, tripped and fell over a four-by-four timber. He was struck on the leg by a twenty eight foot length of seven inch steel pipe, thereby sustaining the injuries which form the subject matter of the claim for damages.
On December 11, 1962, judgment was entered for Lockmiller on his Texas workmen’s compensation claim against Transport Insurance Company, a Texas corporation and insurance carrier for Bell Transport. On March 19, 1964, Lockmiller and Transport Insurance Company filed this third party negligence action against Baron Tube Company and Hyman Baron individually, seeking damages for personal injuries, and reimbursement of the workmen’s compensation benefits paid.
I.
Appellants contend that as a matter of law the claim was barred by the statute of limitations, and that the trial court was in error in not so ruling. In the alternative they contend that the statute of limitations issue involved mixed questions of law and fact, and that it was error not to submit this question to the jury.
This is a diversity case. The statute of limitations is substantive for purposes of Erie Railroad Company v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. See Guaranty Trust Company of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. Federal courts must look to the substantive law of the state in which they are sitting and this includes the state choice of law rules. Klaxon Company v. Stentor Electric Manufacturing Company, Inc., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. Thus, in the instant case, to determine whether the Georgia or Texas statute of limitations applies, we must look to the Georgia choice of law rule. Under Georgia law and the circumstances of this case, the lex fori governs with respect to the statute of limitations. O’Shields v. Georgia Pacific Railway Company, 1889, 83 Ga. 621, 10 S.E. 268, 6 L.R.A. 152; Blue v. Maico, N.D. Ga., 1963, 217 F.Supp. 747. The applicable Georgia statute of limitations is two years and the period begins running when the cause of action accrues. Ga. Code Ann. § 3-1004. To determine when the cause of action accrued we must look to Texas law. Western and Atlantic Railroad Company v. Strong, 1874, 52 Ga. 461; Slaton v. Hall, 1929, 168 Ga. 710, 715, 148 S.E. 741, 743, 73 A.L.R. 891. Under Texas law the cause of action accrued when judgment was entered on Lockmiller’s Texas workmen’s compensation claim, December 11, 1962. Buss v. Robison, 1952, Tex.Civ.App., 255 S.W.2d 339, Writ ref’d n. r. e. The present suit was instituted on March 19, 1964, within the two year Georgia statute of limitations, and hence is not barred.
Nor can we agree with the contention that the statute of limitations issue involved mixed questions of law and fact which should have been submitted to the jury. Appellants have not demonstrated any factual determination which was left open for the jury. The dates involved were undisputed. The only question concerned the impact of these facts under Texas law. This was a question of law, and the court was correct in not submitting the issue to the jury.
II.
Appellants further contend that the action was barred as a matter of law by the contributory negligence of Lockmiller under the “volenti” and “no duty” doctrines of Texas case law. However, the trial court must view the evidence and all legitimate inferences therefrom in the light most favorable to the party against whom a motion for directed verdict or for judgment notwithstanding the verdict is made, and such motion must be denied if there is any substantial evidence which would support a verdict. Turner v. Atlantic Coast Line Railroad Company, 5 Cir., 1961, 292 F.2d 586; Hogan v. United States, 5 Cir., 1963, 325 F.2d 276; Palisi v. Louisville & Nashville Railroad Company, Inc., 5 Cir., 1965, 342 F.2d 799; 2B Barron and Holtzoff (Wright Ed.), Federal Practice and Procedure, § 1075 and 5 Moore’s Federal Practice, §§ 50.10, 50.12, 50.13-50.15 (2d ed.). In light of the facts of record and the Texas authorities, Halepeska v. Callihan Interests, Inc., 1963, Tex., 371 S.W.2d 368; Triangle Motors of Dallas v. Richmond, 1953, 152 Tex. 354, 258 S.W.2d 60, there is no merit in this contention.
III.
We can dispose of three additional assignments of error without extended discussion. We do not agree that the recharge to the jury stressed the contentions of the plaintiffs while excluding those of the defendants and thus deprived appellants of a fair and impartial trial. The recharge was fair and correct.
Appellants complain of the admission into evidence of certain photographs. The fact of the matter is that these photographs, admitted for the limited purpose as they were of showing the location of the pipe racks and the manner in which the pipes rested on the racks, were admissible under any conceivable standard.
They also urge that their counsel had the right to read law to the court in the presence of the jury during his final argument. They assert error in the refusal of the court to permit such to be done, and also in stating, in the presence of the jury, that his effort to make such an argument was improper. The control and conduct of the trial is vested in the discretion of the trial court, Maryland Casualty Company v. Reid, 5 Cir., 1935, 76 F.2d 30, and the action of the court here was well within that discretion. Cf. United States v. Harry Barfield Company, 5 Cir., 1966, 359 F.2d 120.
IY.
The final assignment of error stems from the action of the court in allowing counsel for plaintiffs to base his argument for damages for pain and suffering on a so-called “unit of time” formula. It is the position of appellants that our decision of Johnson v. Colglazier, 5 Cir., 1965, 348 F.2d 420, requires out of hand reversal. They argue that the mere use of such an argument requires summary reversal. They read Johnson v. Colglazier as divesting any discretion the trial court might otherwise have, in any and all circumstances, to permit an argument of this kind. However, such a narrow and rigid interpretation of Johnson v. Colglazier has already been rejected to the extent that reversal is not required where there was no objection to the argument, and a substantial remittitur was ordered. See Country Mutual Insurance Co. v. Eastman, 5 Cir., 1966, 356 F.2d 880. Moreover, this argument ignores a significant distinction between Johnson v. Colglazier and this case based on the presence or absence of a cautionary instruction relative to the argument. There was no such instruction in Johnson v. Colglazier. Here the instruction was full and complete. The court stated in its charge that the argument, and the charts which were a part of the argument, was simply counsel’s method of presenting his contention as to how much should be awarded for pain and suffering. The jury was told that this was not evidence in the case, and that they should not be prejudiced by anything that might have transpired outside the actual evidence in the case.
Our principal difficulty in this case comes from the sweep of the opinion in Johnson v. Colglazier. It reaches much beyond its facts and it may well be argued that the court did sound the death knell for the unit of time argument regardless of the circumstances. In language which may hardly be described as narrow or limited, the court concluded:
“We are of the opinion that, while generous in amount, considering the evidence as a whole, the amount of the verdict is not so excessive per se as to require reversal. We are, however, of the clear opinion that the plaintiffs’ argument as a whole transgressed permissible bounds, that the court’s silence and non-action in not preventing and rebuking the argument was reversible error, and that because of that conduct the judgment must be reversed because excessive, as induced in part by an argument designed, calculated, and effective to mislead the jury into believing that the determination of a proper award for legal damages for pain and suffering is a matter of precise and accurate determination and not, as it really is, a matter to be left to the jury’s determination, uninfluenced by arguments and charts of the kind involved here, which could only be regarded as tending to mislead the jury into believing that there was an accurate ‘legal’ guide or chart to assist and direct them in reaching a large verdict for pain and suffering on considerations which have no proper legal place in the determination.”
Being of the view that this broad statement does indeed cast doubt on the use of unit of time arguments, the court, sua sponte, determined to give en banc consideration to the question.
As the court noted in Johnson v. Colglazier, the propriety of the argument is a federal question. It is a matter of federal trial procedure. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 1958, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, as applied by this court in Monarch Insurance Co. of Ohio v. Spach, 5 Cir., 1960, 281 F.2d 401.
The unit of time type of argument is not proscribfed by federal statute or by the federal rules. Thus, Johnson v. Col-glazier is a judicial application of principles pertaining to jury trials and argument as those principles are followed in trial courts generally. The specific principles involved are that the argument shall not ask the jurors to place themselves in the position of a party, sometimes called the “Golden Rule” argument; the argument shall not appeal to passion or prejudice; and the argument should be based only upon the evidence or the reasonable inferences to be drawn therefrom.
The propriety of the unit of time argument has been considered by many courts with these principles as a frame of reference. Some federal courts have countenanced this form of forensic argument, as have many state courts. There are state and federal decisions to the contrary. The subject has been much discussed, and Johnson v. Colglazier has been criticized. And it is to be noted, Footnote (2), that such arguments are permitted in the courts of each state within the territory of this court. Georgia, by statute, allows such arguments. Georgia Code Annot. § 81-1015.
The reasons militating against use of such an argument were stated for the court by Judge Hutcheson in the majority opinion in Johnson v. Colglazier. These were that the argument cannot be supported by evidence because pain and suffering cannot be measured in dollars on a unit of time basis; that the amount of such damages must necessarily be left, without mathematical formula, to the sound discretion of the jury, because there is no mathematical rule by which the equivalent of such injuries in money can be legally determined; that such arguments create an illusion of certainty in the jury’s mind which does not and cannot in fact exist; and that the whole argument is designed and framed to present an appeal to the jurors to put themselves in the plaintiff’s shoes.
These reasons must be weighed against the desirability of allowing at least a modicum of advocacy in an adversary proceeding designed to determine plaintiff’s damages. When so weighed, the scales are tipped to the side of advocacy. Thus, on balance, our view is that a unit of time type of argument is not improper where accompanied by a suitable cautionary instruction.
Of course, as Judge Brown was careful to point out in his dissenting opinion in Johnson v. Colglazier, the trial court must use care to the end that the argument will not inflame the jury and result in an excessive verdict. However, whether to allow such an argument and the protective features to be employed are matters vested, in the end, in the sound discretion of the trial court. Cf. Maryland Casualty Company v. Reid, supra.
The safeguards which may be utilized may take the form of requiring that counsel notify the court and opposing counsel in advance of argument that the unit of time argument will be made. Since charts are generally used, they should be carefully scrutinized to eliminate any false factual impressions. Also, the court should, as was done in the instant case, make it clear to the jury that the unit of time argument is merely a method of presenting contentions, and is not to be considered as evidence. This may be done at the time the argument is made, or in charge to the jury, or on both occasions. And, as Judge Brown went on to say in his dissent: “ * * * to assure effective complete policing, the Court can construct the charge, either general or on special interrogatories, so that each element is separately fixed. [Rule 49, F.R.Civ.P.] The Judge can readily tell whether the verdict is measurably infected on this element by an extravagant runaway jury.” Lastly, it goes without saying that the court has ample control over excessive verdicts. We hasten to reiterate that these matters, except for requiring a cautionary instruction, are left to the discretion of the trial court.
In essence, the unit of time argument is nothing more than an effort to persuade the jury to evaluate a long period of pain and suffering in terms of its smaller time equivalents. Thus, the idea or worth of one year of pain may not be as understandable, real or persuasive to a juror as its equivalent, three hundred and sixty five days of pain and suffering. Whether the unit be cast in years or months, or weeks or days is a mere matter of degree, and there is little logic in prohibiting the discussion of large units of time in terms of their smaller mathematical equivalents. It is merely a different way of talking about precisely the same thing and it would be unusual, short of a showing that a defendant would be deprived of a fair trial, for the use of the argument to be denied altogether. This is not to say that it is not a powerful form of advocacy, but it is to say that with proper safeguards, as here, it is permissible advocacy. To the extent that Johnson v. Colglazier indicates to the contrary, it is overruled.
Affirmed.
. The Sixth Circuit refused to reverse where a unit of time argument was used, stating that the question was in the discretion of the trial judge in controlling the style and content of argument. Pennsylvania Railroad Company v. McKinley, 6 Cir., 1961, 288 F.2d 262. The Third Circuit in a per curiam opinion, also refused to reverse a case in which the unit of time formula was used, Bowers v. Pennsylvania Railroad Company, 3 Cir., 1960, 281 F.2d 953, per curiam, affirming 182 F.Supp. 756, (D.Del.1960). The District Court considered the matter to be discretionary. The Second Circuit refused to adopt a rule as to the propriety of such an argument in a recent opinion. Rush v. Cargo Ships & Tankers, Inc., 2 Cir., 1966, 360 F.2d 766, [No. 29,972, decided May 20, 1966}. The court found no reversible error in allowing the argument under the circumstances of the case.
. Alabama: Atlantic Coast Line Railroad Co. v. Kines, 1964, 276 Ala. 253, 160 So.2d 869; McLaney v. Turner, 1958, 267 Ala. 588, 104 So.2d 315.
Arkansas: Vanlandingham v. Gartman, 1963, 236 Ark. 504, 367 S.W.2d 111.
Colorado: Newbury v. Vogel, 1963, 151 Colo. 520, 379 P.2d 811.
District of Golwnibia: Evening Star Newspaper Company v. Gray, 1962, D.C.Mun.Ct.App., 179 A.2d 377.
Florida: Payne v. Alvarez, 1963, Fla.App., 156 So.2d 659; Perdue v. Watson, 1962, Fla.App., 144 So.2d 840; Ratner v. Arrington, 1959, Fla.App., 111 So.2d 82.
Georgia: Has enacted a statute permitting a variation of the argument. Ga. Code Ann. § 81-1015 (1960).
Indiana: Southern Indiana Gas & Electric Company v. Bone, 1962, 135 Ind. App. 531, 180 N.E.2d 375.
Iowa: Cardamon v. Iowa Lutheran Hospital, 1964, 256 Iowa 506, 128 N.W.2d 226; Corkery v. Greenberg, 1962, 253 Iowa 846, 114 N.W.2d 327.
Kentucky: Louisville & Nashville Railroad Company v. Mattingly, 1960, Ky., 339 S.W.2d 155; Maclin v. Horner, 1962, Ky., 357 S.W.2d 325.
Louisiana: Little v. Hughes, 1961, La.App., 136 So.2d 448.
Maryland: Lebow v. Reichel, 1963, 231 Md. 421, 190 A.2d 642; Eastern Shore Public Service Company v. Corbett, 1961, 227 Md. 411, 177 A.2d 701; Harper v. Higgs, 1961, 225 Md. 24, 169 A.2d 661.
Michigan: Yates v. Wenk, 1961, 363 Mich. 311, 109 N.W.2d 828.
Minnesota: Flaherty v. Minneapolis & St. Louis Railway Company, 1958, 251 Minn. 345, 87 N.W.2d 633; Boutang v. Twin City Motor Bus Company, 1956, 248 Minn. 240, 80 N.W.2d 30.
Mississippi: Index Drilling, Inc. v. Williams, 1962, 242 Miss. 775, 137 So.2d 525; Arnold v. Ellis, 1957, 231 Miss. 757, 97 So.2d 744; Four County Elec. Power Ass’n v. Clardy, 1954, 221 Miss. 403, 73 So.2d 144, 44 A.L.R.2d 1191.
Montana: Vogel v. Fetter Livestock Company, 1964, 144 Mont. 127, 394 P.2d 766; Wyant v. Dunn, 1962, 140 Mont. 181, 368 P.2d 917.
Nevada: Johnson v. Brown, 1959, 75 Nev. 437, 345 P.2d 754.
North Carolina: Jenkins v. Harvey C. Hines Company, 1965, 264 N.C. 83, 141 S.E.2d 1 (court did not accept or reject the argument, but intimated acceptance).
Ohio: Grossnickle v. Village of Germantown, 1965, 3 Ohio St.2d 96, 209 N.E.2d 442.
Tennessee: Has enacted a statute permitting a variation of the argument. Tenn.Code Ann. § 20-1327 (1963).
Texas: Hernandez v. Baucum, 1961. Tex.Civ.App., 344 S.W.2d 498; Chemical Express v. Cole, 1961, Tex.Civ.App., 342 S.W.2d 773; Texas & New Orleans Railroad Company v. Flowers, 1960, Tex.Civ.App., 336 S.W.2d 907; Louisiana & Arkansas Railway v. Mullins, 1959, Tex.Civ.App., 326 S.W. 2d 263; Continental Bus System, Inc. v. Toombs, 1959, Tex.Civ.App., 325 S.W.2d 153.
Utah: Olsen v. Preferred Risk Mutual Insurance Company, 11 Utah 2d 23, 354 P.2d 575.
Washington: Hill v. C. & E. Constr. Co., Inc., 1962, 59 Wash.2d 743, 370 P.2d 255; Jones v. Hogan, 1960, 56 Wash.2d 23, 351 P.2d 153.
. Federal: Chicago & N. W. Ry. Co. v. Candler, 8 Cir., 1922, 283 F. 881, 28 A.L.R. 1174.
Delaware: Henne v. Balick, 1958, 51 Del. 369, 146 A.2d 394 (Here however there was no testimony to support the figures used, only speculation of counsel).
Hawaii: Young v. Price, 1964, 48 Haw. 22, 395 P.2d 365; Franco v. Fujimoto, 1964, 47 Haw. 408, 390 P.2d 740.
Illinois: Caley v. Manicke, 1962, 24 Ill.2d. 390, 182 N.E.2d 206; Jensen v. Elgin, Joliet and Eastern Railway Company, 1962, 24 Ill.2d 383, 182 N.E.2d 211, 94 A.L.R.2d 904; but see American National Bank & Trust Company v. Peoples Gas Light and Coke Company, 1963, 42 Ill.App.2d 163, 191 N.E.2d 628.
Kansas: Caylor v. Atchison, Topeka and Santa Fe Railway Company, 1962, 190 Kan. 261, 374 P.2d 53.
Missouri: Wimsatt v. Mitchell, 1964, Mo.App., 383 S.W.2d 154; Faught v. Washam, 1959, Mo., 329 S.W.2d 588; Goldstein v. Feldman, 1960, Mo., 336 S.W.2d 661, does not hold to the contrary; it merely permits the plaintiff’s counsel to suggest a lump sum if said amount has substantial basis in the record.
New Hampshire: Chamberlain v. Palmer Lumber Co., 1962, 104 N.H. 221, 183 A.2d 906; Duguay v. Gelinas, 1962, 104 N.H. 182, 182 A.2d 451.
New Jersey: Cross v. Robert E. Lamb Inc., 1960, 60 N.J.Super. 53, 158 A.2d 359; Botta v. Brunner, 1958, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331.
New York: Paley v. Brust, 1964, 21 A.D.2d 758, 250 N.Y.S.2d 356.
North Dakota: King v. Railway Express Agency, Inc., 1961, N.D., 107 N.W.2d 509. Court holds only that a unit of time argument is improper where no evidence has been introduced which supported computations.
Pennsylvania: Ruby v. Casello, 1964, 204 Pa.Super. 9, 201 A.2d 219.
South Carolina: Cf. Edwards v. Lawton, 1964, 244 S.C. 276, 136 S.E.2d 708 (Argument permissible where counsel refrained from giving his opinion as to per diem value of pain and suffering and pointed out that only jury could place monetary value thereon). Harper v. Bolton, 1962, 239 S.C. 541, 124 S.E.2d 54.
Virginia: Certified T.V. Appliance Company, Inc. v. Harrington, 1959, 201 Va. 109, 109 S.E.2d 126.
West Virginia: Armstead v. Holbert, 1961, 146 W.Va. 582, 122 S.E.2d 43; Crum v. Ward, 1961, 146 W.Va. 421, 122 S.E.2d 18.
Wisconsin: Affett v. Milwaukee & Suburban Transport Corporation, 1960, 11 Wis.2d 604, 106 N.W.2d 274, 86 A.L.R.2d 227.
. See note 4 on page 864.
4. 15 Vand.L.Rev. 1303 (1962); 22 La.L.Rev. 461 (1962); 60 Mich.L.Rev. 612 (1962); 14 U.Fla.L.Rev. 189 (1961); 11 Clev.Mar L.Rev. 495 (1962); 39 N.D.L.Rev. 209 (1963); 15 U.Miami L.Rev. 85 (1960); 1960 Wash.U.L.Q. 302; 1959 Ins.L.J. 699 ; 9 N.Y.L.F. 533 (1963) ; 17 Ark.L.Rev. 94 (1963); 1962 U.Ill.L.F. 269 ; 36 Temp.L.Q. 98 (1962); 11 Kan.L.Rev. 170 (1962); 41 B.U.L.Rev. 432 (1961) ; 38 Chi.-Kent L.Rev. 62 (1961) ; 23 Ohio S.L.J. 573 (1962); 10 Kan.L. Rev. 93 (1961); 45 Marq.L.Rev. 289 (1961) ; 62 W.Va.L.Rev. 402 (1960); 38 N.C.L.Rev. 289 (1960); 12 Rutgers L.Rev. 522 (1958); 36 Dicta 373 (1959) ; 33 So.Calif.L.Rev. 214 (1959); 19 Ohio S.L.J. 780 (1958); 43 Minn.L.Rev. 832 (1959); 11 Ala.L.Rev. 207 (1958); 1962 Duke L.J. 344; 1964 Ins.L.J. 264; 49 Ky.L.J. 592 (1961); 64 W.Va.L.Rev. 454 (1962) ; 4 Ariz.L.Rev. 312 (1963); 14 S.C.L.Q. 442 (1962); 16 Okl.L.Rev. 468 (1963) ; 2 Washburn L.J. 171 (1962); 12 De Paul L.Rev. 317 (1963); 6 Trial Law Guide 57 (1962); 22 Md.L.Rev. 254 (1962) ; 16 Maine L.Rev. 233 (1964) ; 14 Defense L.J. 129 (1965); 13 Hastings 502 (1962); 23 Ohio St.L.J. 573 (1962).
. See note 5 on page 864.
5. Comment, 44 Texas L.Rev. 195 (1965).
. These are the traditional arguments against the unit of time argument originally enunciated in Botta v. Brunner, 1958, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
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songer_treat
|
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.
PENNTECH PAPERS, INC., Appellee, v. UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO-CLC; and Local Union No. 710, United Paperworkers International Union, AFL-CIO-CLC, Appellants.
No. 89-3655.
United States Court of Appeals, Third Circuit.
Argued Feb. 9, 1990.
Decided Feb. 21, 1990.
Richard H. Markowitz (argued), Joseph T. Cleary, Markowitz & Richman, Philadelphia, Pa., Lynn Agee, Lynn C. Ivanick, United Paperworkers Intern. Union, AFL-CIO, Legal Dept. Nashville, Tenn., for appellants.
Ernest J. Collazo (argued), Robert V. Chisholm, Simpson Thacher & Bartlett, New York City, for appellee.
Before GREENBERG, SCIRICA and SEITZ, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.
Defendants, United Paperworkers International Union, AFL-CIO-CLC and Local No. 701, United Paperworkers International Union AFL-CIO-CLC (Union), appeal from a final order of the district court granting the plaintiff, Penntech Papers, Inc. (Penntech), summary judgment in its action to vacate an arbitration award. Our review is plenary.
The district court’s jurisdiction was based on Section 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185 (1982). We have jurisdiction under 28 U.S.C. § 1291 (1982).
Penntech and the Union were parties to a collective bargaining agreement which was effective from June 10, 1986, through June 10, 1989. Under the terms of this agreement, if Penntech substantially changed the duties of an existing job classification so as to make its wage rate out of line with representative jobs in the plant, it was required to negotiate the matter with the Union.
On November 15, 1987, Penntech eliminated the Starch Mixer classification and incorporated the duties of this position within the existing job classification of Size and Clay Mixer. The Union filed a grievance alleging that such a change warranted a new wage rate for the Size and Clay Mixer position.
When no agreement could be reached, the Union presented the matter for arbitration under the arbitration provisions of the collective bargaining agreement. On May 5, 1989, the arbitrator found that the elimination of the Starch Mixer (or helper) position and the absorption of that job’s duties into the job of the Size and Clay Mixer (or operator) constituted a substantial change in the position.
The arbitrator further concluded that, since an increase of $.25 was implemented in a prior, similar restructuring, the wage rate of the Size and Clay Mixer was “out of line” with representative jobs in the plant. He, therefore, awarded an increase of $.25 per hour.
On May 25, 1989, Penntech filed suit to vacate and set aside the arbitrator’s award. The district court granted the company’s motion for summary judgment on the basis that the award did not draw its essence from the collective bargaining agreement. Specifically, it held that the arbitrator exceeded his authority in awarding a rate increase without detailed job duty/wage comparisons, which it concluded were called for by his construction of the collective bargaining agreement. This appeal followed.
The Supreme Court has narrowly circumscribed the scope of judicial review of a labor arbitration award. “Unless the arbi-tral decision does not ‘draw[] its essence from the collective bargaining agreement,’ a court is bound to enforce the award and is not entitled to review the merits of the contract dispute.” W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983) (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)). We have consistently applied this standard in reviewing district court dispositions of arbitration cases. See, e.g., Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir.1969). We turn to the present facts.
At the hearing before the arbitrator, the parties could not agree on the wording of the arbitral issue. Penntech proposed the following:
Have the duties of the Size and Clay Mixer changed substantially so as to bring its job rate out of line with representative jobs within the plant?
The Union’s version was as follows:
Have the duties and responsibilities of the Size and Clay Mixer classification changed enough since June 10, 1986, to warrant an increase in wages? If so, what shall the remedy be?
Penntech objected to the Union’s formulation on two grounds: that it used the word “enough” to refer to the change instead of the word “substantially” as provided for in the agreement; and that it did not contain the contract requirement that the job rate be out of line with other representative jobs. It is not disputed that the parties finally agreed to allow the arbitrator to formulate the issue.
The arbitrator accepted the Union’s framing of the issue, with the only modification being substitution of the word “substantially” for the word “enough.” The formulation did not contain the “out of line” language pertaining to the job rate, which Penntech had requested. After a hearing, the arbitrator filed an opinion and award in favor of the Union. He determined that there had been a substantial change in the Size and Clay Mixer job and that the appropriate remedy was a rate increase like that granted in a prior, similar situation.
The controlling provision of the collective bargaining agreement reads:
If the duties and responsibilities of any existing job classification are changed substantially after June 10, 1986, and/or a number of changes equaling a substantial change are made and the result is to bring its rate out of line with representative jobs within the plant, the Company will negotiate the matter upon written request of the Union. If a new wage is agreed upon, the changed rate will be retroactive to the date the substantial change occurred. r
The arbitrator found that the duties and responsibilities of the job in question changed substantially after June 10, 1986. Neither Penntech nor the district court disputed this finding. Rather, the district court disagreed with the arbitrator’s interpretation and application of the provision of paragraph 22 of the contract which requires a determination of whether the result of the change “is to bring its rate out of line with representative jobs within the plant.”
We conclude that the arbitrator did not ignore the provision at issue. Rather, he stated that it is reasonable to conclude that, if the rate for a job was in line with its duties at the outset, a substantial change in duties would bring its rate “out of line” with representative positions in the plant. The arbitrator acknowledged that evidence on the quoted provision was minimal, consisting solely of the Union’s testimony that a $.25 increase was awarded to the E. Rewinder when the utility employee was eliminated. He noted that such an increase in the instant case, though it would cause a jump in the relative standing of the Size and Clay Mixer position, would not cause the position to rise to the top of the rates for all positions. Thus, the arbitrator relied on precedent, rather than a job rate comparison, to determine whether the wage rate for the position was out of line.
In vacating the award, the district court held that paragraph 22 required the Union to prove and the arbitrator to find that the present rate was out of line with other jobs. That the arbitrator did so is plain in light of the award of a rate increase. The contract does not specify how he was to make the out-of-line determination. It does not require the wage rate comparison mandated by the district court. We find that consideration of a $.25 increase granted in a similar restructuring is a permissible method of determining that the wage rate for the Size and Clay Mixer position was out of line.
As the Supreme Court has said: “It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Enterprise Wheel, 363 U.S. at 599, 80 S.Ct. at 1362. Our continued allegiance to this principle serves to protect the benefits of labor arbitration, namely, speed, flexibility, informality and finality.
The Union argues, alternatively, that the arbitrator’s award addressed the exact issue which the parties agreed to allow the arbitrator to formulate and, under controlling law, that should be the end of the matter. Penntech retorts that this legal theory was not advanced in the district court and therefore should not be considered on appeal. In view of our determination in favor of the Union on its first theory, we need not address this issue.
Accordingly, the judgment of the district court will be reversed and the matter remanded for further appropriate proceedings.
. Article VII, paragraph 23, provides:
If agreement cannot be reached on a proper wage rate for a new or changed job within thirty (30) days of the first bargaining meeting, the dispute may be processed beginning at Step Four (Arbitration) of the grievance procedure.
Article XI, paragraph 81, provides in pertinent part:
The decision of the Arbitrator shall be conclusive and binding on all parties concerned.
. The arbitrator erroneously stated that the parties agreed to the terms of the issue to be arbitrated. This error is of no moment here.
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_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES v. JANKOWSKI et al.
Circuit Court of Appeals, Second Circuit.
October 29, 1928.
No. 91.
Manton, Circuit Judge, dissenting.
Michael J. Maher, of Buffalo, N. Y. (John J. Carlo, of Buffalo, N. Y., of counsel), for plaintiffs in error.
Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Harold E. Orr, of Buffalo, N. Y., of counsel), for the United States.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge
(after stating the facts as above).
If the story of State Trooper Gibbons be taken as true, and it would seem to be more likely to be so than the interested account of the defendant Binkowski, we must assume that the troopers were patrolling the roads to secure the observance of state law and to detect its violation. A part of their duty was to see that persons driving motor vehicles complied with section 286 of the New York Highway Law (Consol. Laws, c. 25), which requires the display of proper headlights on all automobiles. Gibbons testified that the car which Jankowski drove had—
“one light on and the other flickering; * * * that they stopped this car to notify the driver to fix his lights; * * * that, after he stopped the defendant’s car, he asked him for his license card and at that time saw a blanket across the knees of the defendants that he knew was the property of the state of New York; * * * that thereafter the two defendants got out of the car and * * * as they got out he noticed underneath the blanket was a package on the floor; * * * that he asked the defendant Binkowski what it was and that both defendants said ‘it was whisky.’ * * * He then asked the defendants if they had any more than what was in the front and Jankowski then opened the back end of the coupé and there were 16 eases altogether of ‘Golden Wedding’ whisky and that he then placed them únder arrest and took them to Jamestown.”
This version of what occurred shows no illegal seareh, nor, indeed, any seareh at all. While engaged in ordinary police work for the state, the troopers saw the package which the defendants said contained whisky. Thereafter the defend'ants, knowing that they were caught, confessed that they had other whisky aboard the ear, and opened the rear of the car and disclosed the contents.
The claim that the seareh was illegal can only be based on the opening of the door of the car by the trooper. But when a policeman, without any protest, opens the door of an automobile to talk to the owner, it certainly goes beyond all reason to say that he is engaged in an unlawful seareh. It may often be the most convenient way either to look at a registry card or to talk to the driver about the condition of his headlights.
Nor is it necessary, because the lights were not ultimately found to be defective, to assume that the motive for stopping the ear was to'make an unlawful seareh for contraband liquor. They may have temporarily been dim because of some irregularity in the electric current, or the officers may have been mistaken. The avowed purpose for stopping the ear and opening the door was to enforce state regulations, and the discovery of the whisky was incidental.
In such circumstances, any officer who saw the defendants in the act of committing a crime would have the power to make an arrest.
The plaintiff in error relies on the decision in Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381. It was there held that, when state officers were making a search and seizure without probable cause and solely for the purpose of aiding in the enforcement of the federal law, the evidence could not be used in the federal courts, because the sole purpose of the search was to aid in the prosecution of a federal offense. Here, according to the testimony of Gibbons, the purpose of stopping the car was to enforce the observance of the state laws, and the information gained thereby was incidental and obtained without any seareh.
The only remaining consideration is whether the story of Gibbons, on the faith of which the trial judge admitted the evidence, was credible, and whether, even if it was prima facie credible, the jury, in view of the conflict of testimony, should not have been allowed to pass on whether the facts constituted an illegal search.
It cannot be doubted that the testimony of Gibbons was credible. It was only met by the story of one of the defendants under indictment for the offense charged. Gibbons is not shown to have had any interest in misrepresenting the facts, whereas the interest of the defendants was patent. Consequently there was sufficient ground for the admission of the testimony by the trial judge.
If, as we find, the testimony was properly admitted by the court, it,would be contrary to all proper rules of evidence to allow the jury in effect to pass on its admissibility and to determine whether any legal search was made. The question as to the lawfulness of the search relates to admissibility of evidence, and was for the court only. While we are referred to no decision relating especially to the rule as to admissibility of evidence in search and seizure cases, the general rule is as we have indicated. Gila Valley G. & N. R. Co. v. Hall, 232 U. S. 94, 34 S. Ct. 229, 58 L. Ed. 521; Commonwealth v. Culver, 126 Mass. 464; State v. Leo, 80 N. J. Law, 21, 77 A. 523.
We find no error in the record, and the judgment of conviction is accordingly affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_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.
UNITED STATES of America, Appellee, v. Said AREFI, Michael Geyer, Anthony Montalvo, Joseph Allo and Erasmo Oddo, Defendants, Erasmo Oddo, Defendant-Appellant.
No. 659, Docket 87-1408.
United States Court of Appeals, Second Circuit.
Argued Jan. 19, 1988.
Decided May 2, 1988.
Edward S. Panzer, New York City, for defendant-appellant.
Thomas P. Milton, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the E.D.N.Y., David C. James, Asst. U.S. Atty., Brooklyn, of counsel), for appellee.
Before LUMBARD, KEARSE and PIERCE, Circuit Judges.
PIERCE, Circuit Judge:
Erasmo Oddo appeals from the sentence imposed upon him by the United States District Court for the Eastern District of New York, George C. Pratt, Circuit Judge, sitting by designation, following his conviction upon a plea of guilty to one count of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Judge Pratt sentenced Oddo to a five-year term of imprisonment followed by three years of special parole, plus a mandatory special assessment of $50. On appeal, Oddo seeks to have this sentence vacated on the grounds that (1) the court failed to comply with Fed.R. Crim.P. 32 with respect to appellant’s challenges to the presentence report; (2) the court improperly refused to exclude a witness from the courtroom as required by Fed.R.Evid. 615; and (3) the government failed to prove the allegation in the presen-tence report that Oddo was the source of the cocaine that was sold to an undercover agent. Although we reject most of Oddo’s contentions, we find that the presentence report was tainted by one material misstatement. We therefore vacate the sentence and remand the case to the district court with instructions to comply with the requirements of Fed.R.Crim.P. 32 and to resentence the defendant.
BACKGROUND
Appellant Oddo was arrested on November 4, 1986, together with codefendants Joseph Alio and Anthony Montalvo, following the sale of two kilograms of 96% pure cocaine to an undercover agent in the parking lot of the shopping center at Roosevelt Field on Long Island, New York. All three defendants’ cases were originally assigned to Judge Mishler of the Eastern District of New York. Montalvo cooperated with the government and on January 27, 1987, he pleaded guilty before Judge Mishler to a single-count superseding information that charged him with distributing cocaine in violation of 21 U.S.C. § 841(a)(1).
Alio and Oddo were charged in a two-count superseding indictment with conspiracy to possess and distribute cocaine and with distributing in excess of 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. For scheduling reasons, their cases were transferred to Judge Pratt for trial. However, on March 25, 1987, the date scheduled for their trials, Alio and Oddo pleaded guilty to the lesser included crime of distributing an unspecified quantity of cocaine.
Presentence reports were prepared with respect to all three defendants. The reports related that Alio and Oddo were more culpable than Montalvo and that Oddo was the primary source of the drugs. Oddo challenged various statements in his report, asserting in particular that he played only a minor role in the drug transaction. In order to determine the relative culpability of the three defendants, as well as to resolve challenges to the contents of the reports, Judges Pratt and Mishler held a joint sentencing hearing beginning on August 12, 1987, with respect to all three defendants. After three days of hearings, at which Alio, Montalvo and the undercover agent testified, the two judges independently concluded that, as between the three defendants, Oddo was the source of the cocaine that was sold to the agent.
DISCUSSION
A. Compliance With Fed.R.Crim.P. 32
Oddo challenged various statements contained in his presentence report. He now asserts that his sentence should be vacated because Judge Pratt failed to make specific findings of fact with respect to those challenges and to append such findings to the report, as required by Fed.R.Crim.P. 32(c)(3)(D). We discuss the controverted statements seriatim.
1. Lack of Cooperation
The report contained the statement that “defendant has provided no cooperation with respect to this investigation.” Oddo objected to this statement on the ground that the district court may not enhance a sentence because of a defendant’s failure to cooperate with the government, even though it may consider cooperation as a mitigating factor. United States v. Stratton, 820 F.2d 562 (2d Cir.1987). Judge Pratt specifically responded to this objection, stating on the record that he would not consider Oddo’s lack of cooperation in determining sentence. Since the sentencing judge is not required to make any findings when he explicitly disavows any reliance on a controverted statement such as this one, see Fed.R.Crim.P. 32(c)(3)(D)(ii), this omission was not a violation of Rule 32. United States v. Navaro, 774 F.2d 565 (2d Cir.1985) (per curiam).
We agree with Oddo that Rule 32 mandates that the district court append its determination regarding the challenged statement. Nonetheless, this technical violation does not require us to vacate the sentence. United States v. Santamaria, 788 F.2d 824, 829 (1st Cir.1986); see United States v. Ursillo, 786 F.2d 66, 71 (2d Cir.1986). Since this omission can easily be cured, we remand to the district court with instructions to append its determination to the presentence report.
2. Oddo’s Role in the Transaction
Oddo contested the accuracy of various statements in the presentence report that identified him as the source of the cocaine sold to the undercover agent. In particular, the report contained the following assertions regarding his role:
Alio and Oddo are equally the most culpable defendants and the source of the cocaine. The case agent says that Alio received the cocaine from Oddo and then gave it to Montalvo for sale.
Agents characterized the defendant [Oddo] as a primary figure who served as the source for the two kilos [of cocaine].... [H]is role [would] seem to indicate a proprietary interest in the overall transaction....
Oddo claimed that these statements were inaccurate because he played only a minor role in the deal, acting only as “lookout” for Alio.
On appeal, Oddo asserts that the court failed to make specific findings as to each of these controverted statements. This contention is without merit. Judge Pratt announced in open court at the conclusion of three days of hearings that he and Judge Mishler had reached a finding as to the roles played by the different defendants: “We find that the cocaine was originally supplied here by Mr. Oddo, and his responsibility here was essentially to see that when it was sold it got paid for and the money would come back to him. We have no information as to where Mr. Oddo may have acquired it.” We consider this statement to be sufficiently precise to comply with the requirement of Rule 32, since it directly addressed Oddo’s challenge that “these statements of his level of culpability are pure conjecture” and that Oddo “had a minor role and is the least culpable in what transpired with respect to the cocaine on November 4, 1986.” Although the court again failed to order that its findings be appended to the report, this omission also can readily be cured on remand without requiring us to vacate the sentence. Santamaria, 788 F.2d at 829.
Prior to sentencing, Oddo also challenged the statement in the presentence report that “Montalvo has previously mentioned [sic] received the cocaine from Oddo [sic].” The government now concedes that this statement is inaccurate because Montalvo did not assert that Oddo provided him with the cocaine; rather, he testified that Alio was his supplier and that he had not met Oddo prior to participating in this drug transaction. The government contends that the statement merely contained typographical errors. Under Rule 32, however, the district court was required to make findings as to the accuracy of the statement or to disclaim reliance upon it, but did not do either. Ordinarily, in such a situation, “[u]nless the government can demonstrate that the disputed facts were not relied upon, the defendant must be resen-tenced.” United States v. Eschweiler, 782 F.2d 1385, 1389 (7th Cir.1986); see United States v. Lawal, 810 F.2d 491, 492-93 (5th Cir.1987).
Although the statement in question misrepresents Montalvo’s identification of his supplier, this inaccuracy was not prejudicial to Oddo. The court found that “the cocaine was originally supplied here by Mr. Oddo....” As discussed infra at point C, we find that the testimony provided at the hearing was more than sufficient to sustain this finding; therefore, we do not believe that the failure to correct or to disclaim reliance upon the misstatement requires us to vacate the sentence.
Although the rule “is designed to insure maximum clarity, on the record, of the sentencing judge’s treatment of disputed matters,” Ursillo, 786 F.2d at 71, this court does not apply the rule mechanically. Rather, where the inaccuracy is de minim-is in the context of the case as a whole, or where the violation of the rule is technical or ministerial, resentencing is not required. United States v. Bradley, 812 F.2d 774, 782 (2d Cir.1987); see United States v. Castillo-Roman, 774 F.2d 1280, 1285 (5th Cir.1985); see also Ursillo, 786 F.2d at 71.
We likewise see no reason to vacate a sentence where, as here, the error could not have been relied upon to the defendant’s detriment. See United States v. Ryan, 810 F.2d 650, 657 (7th Cir.1987); Eschweiler, 782 F.2d at 1390. After considering Oddo’s arguments, we are satisfied that, in view of all of the other evidence presented regarding Oddo’s involvement in the transaction, this particular statement was inconsequential. Indeed, Judge Pratt’s explicit finding that “Mr. Montalvo was acting as a go between, between ... the under cover [sic] officer and Mr. Alio from whom Mr. Montalvo believed he would be able to obtain the cocaine,” clearly indicates that he was not misled as to the chain of supply. Under these circumstances, it would be inappropriate to upset the sentence imposed based on these omissions alone. However, even if a misstatement is “harmless” and does not require resentencing, it must still be corrected or clarified, see Eschweiler, 782 F.2d at 1390; see also Bradley, 812 F.2d at 782, and we therefore remand to the district court for compliance with Rule 32.
We also note and draw the attention of the district court to the fact that the pre-sentence report submitted to this Court under seal as part of the record on appeal has been modified and varies from the one that Oddo challenged. In the version that we have examined, some of the statements that Oddo contested have been corrected, although in other instances, only grammatical changes have been made. One of the significant modifications that we have discovered involves the alteration of the sentence that, according to the government, had contained typographical errors. It now reads: “Montalvo, as previously men-tionedj received the cocaine from Alio” (changes underlined).
While it appears that the government may have made a good faith effort to correct prior errors, we disapprove of the alteration of documents in this manner. Though it may have been appropriate for the government to request permission to submit two versions of the report — the original plus a corrected report marked to show changes — it is improper to submit on appeal a record that differs from that which was actually before the district court. Upon remand, in order to fulfill the purposes of Rule 32, the district court should compare the two versions of the presentence report and ensure that the version considered by the district court to be correct is made available to appropriate prison and parole authorities.
3. Oddo’s Conduct at the Time of Arrest
Both the original report and the modified one contain the disputed statement “Oddo was arrested as he started to run towards the [Roosevelt Field] Mall.” Oddo insists that he was walking, not running. Even though the district court failed to make the required finding with respect to this statement, the accuracy of this representation is immaterial to the propriety of the sentence. Consequently, this alleged misstatement provides no basis to upset the sentence imposed; but since any errors in the report should be corrected, we instruct the district court to comply with Rule 32 on remand with respect to this dispute.
4. The Scope of Oddo’s Criminal Activity
The original report contained the controverted statement that “defendant played what authorities described as a primary role in multiple cocaine transactions.” Oddo asserted in the district court that this statement contained the unwarranted implication that he was a persistent drug dealer who participated in many different drug transactions. He contended that the evidence only demonstrated his involvement in the one transaction to which he had pleaded guilty. The government responded that the report merely alluded to the fact that the transaction was supposed to involve five kilograms of cocaine, to be sold in two exchanges, and that the two-kilogram sale for which Oddo was arrested was only the first installment. Judge Pratt neither addressed this challenge nor disclaimed reliance upon it before imposing sentence. The subject statement is ambiguous and misleading, and we note that this wording has also been changed in the modified version of the report that is now before us. The modified report says “the defendant played what authorities describe as a primary role in a multi-kilo cocaine transaction....”
? review of the transcript of the sentencing hearing suggests that Judge Pratt based Oddo’s sentence primarily on his finding that Oddo was the source of the cocaine. There is no indication that the court understood that Oddo was involved in any other drug transaction or that the sentence imposed was in any way affected by the ambiguous statement in the report. However, we cannot rely upon conjecture as to what statements the district court may have considered or ignored; pursuant to Rule 32, resentencing is warranted whenever the court may have considered a material controverted statement and did not first make a finding as to its accuracy. See Eschweiler, 782 F.2d at 1389, 1390 n. 11 (“[Wjhere it is unclear whether the sentencing judge relied on the contested information, resentencing would resolve the matter.”); United States v. Velasquez, 748 F.2d 972 (5th Cir.1984) (defendant convicted on one count of aiding and abetting transportation of illegal aliens entitled to be resentenced because court may have considered statement that he was a “notorious alien smuggler”); cf. Bradley, 812 F.2d at 782, 783 n. 10 (resentencing not required if, on remand, judge can disclaim reliance on controverted statement containing only de minimis inaccuracy). Since the statement in Oddo’s report about “multiple cocaine transactions,” if considered by the court, may have affected the sentence imposed, we are constrained to vacate the sentence and to remand for resentencing.
B. Failure to Exclude Witnesses
Oddo further argues on appeal that the court violated Fed.R.Evid. 615 by failing to exclude Montalvo from the courtroom during the sentencing hearing while the other witnesses were testifying. This argument is without merit. The rules of evidence, by their own terms, do not apply to sentencing hearings. Fed.R.Evid. 1101(d)(3). Moreover, even if Rule 615 were applicable, this rule explicitly provides that it does not authorize the exclusion of “a party who is a natural person.” Since Montalvo was a party defendant to the joint proceedings being conducted, there was no error in permitting him to remain present while other witnesses were testifying.
C. Sufficiency of the Evidence
Oddo’s final challenge to his sentence is that the government did not present sufficient evidence to substantiate its claim that Oddo provided the drugs that Alio gave to Montalvo for sale to the undercover agent. Judges Pratt and Mishler heard testimony for three days, with evidence presented both by the government and by the defendants. Allo’s testimony was consistent with the version of the facts urged on the court by Oddo; neither Alio nor Montalvo testified that Oddo was the supplier. The undercover agent testified, though, both as to his observation of the drug transaction and, from his expert knowledge and experience, about the roles played by the respective participants. The agent’s testimony established that (1) the supplier of the drugs is often present when his drugs are being sold via a third party to a new buyer, such as the agent was in this transaction; (2) the high quality of the cocaine (96% pure) indicated that the transaction was close to its prime source; and (3) Alio performed the “lookout” role, since he carried a gun and was close to the exchange, while Oddo was unarmed and observed the exchange from a safe distance. This latter conduct was described as typical behavior for a supplier and was inconsistent with Oddo’s professed role of “lookout”.
Judges Pratt and Mishler independently reached the conclusion that the government agent’s testimony was credible, and that Allo’s was not. Since Oddo had argued that the transaction occurred in the manner that Alio had claimed, the court therefore rejected Oddo’s version of the incident. Having reviewed the transcript of the hearing, we find that there was sufficient evidence to support the conclusion of the district court.
CONCLUSION
The district court’s failure to append its findings to the presentence report is a ministerial omission that can readily be cured; the misstatement concerning the identity of Montalvo’s supplier did not prejudice Oddo since the court reached an independent finding that Oddo supplied the cocaine that was sold; and it is immaterial whether Oddo was walking or running at the time of his arrest. None of these errors is significant enough to warrant resentenc-ing. Nevertheless, we remand the case and direct the district court to examine the two versions of the presentence report and to comply with Rule 32 with respect to these matters.
The misstatement in the report which implied that Oddo was involved in drug transactions other than the one for which he was being sentenced was prejudicial and may have influenced the sentence imposed. Since we cannot tell whether the district court considered this statement, we must vacate the sentence. After complying with the obligations of Rule 32, the court shall resentence the defendant. Having considered all of Oddo’s arguments, we reject his other challenges to the sentence imposed.
The sentence is vacated, and the case is remanded for further proceedings consistent with this opinion. The mandate shall issue forthwith.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_crmproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
James E. FIELDS, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
No. 10776.
United States Court of Appeals Fourth Circuit.
Argued Jan. 9, 1967.
Decided March 7, 1967.
John J. Kirby, Jr., Charlottesville, Va. (Court-assigned counsel), for appellant.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.
Before SOBELOFF, BRYAN and J. SPENCER BELL, Circuit Judges.
SOBELOFF, Circuit Judge:
The question for decision is whether in the circumstances of this case the appellant may successfully assert that he was not afforded effective assistance of counsel. The feature of the case to which our attention has been primarily directed is that the total lapse of time between appointment of counsel and the passing of sentence upon the defendant was no more than fifteen to thirty minutes.
An allegation that the appellant, James E. Fields, had been denied effective assistance of counsel in his criminal trial was first made in his petition for a writ of habeas corpus in the Circuit Court of Bedford County, Virginia. That court, after a plenary hearing, agreed that the facts showed that the defendant had been afforded less than the minimum required for effective assistance of counsel, and ordered the state to retry or release him. On the Attorney General’s appeal, the Supreme Court of. Appeals of Virginia did not disturb the findings of fact, but reversed the lower court’s judgment and remanded petitioner to custody. Peyton v. Fields, 207 Va. 40, 147 S.E.2d 762 (1966). He then petitioned the federal District Court for a writ of habeas corpus, which was denied without a hearing. From this action he prosecutes the present appeal.
According to the record made in the state habeas court, the offense for which the appellant was prosecuted and sentenced arose in the following manner. On June 25, 1959, while serving a sentence in a State Convict Road Force Camp in Bedford County, he escaped from custody and was apprehended approximately one hour later. He was then taken to the county jail, where he remained until July 7, the day of his trial. While in confinement, no one talked with him about the charges against him. He was indicted for the escape and for statutory burglary allegedly committed during the hour he was at large. The burglary charge appears to have been based on his entering a “cabin” to hide therein.
When the accused was brought into court for trial, the Judge, learning that he was not represented by counsel, appointed an attorney to defend him. After a short consultation with this attorney in the rear of the courtroom, Fields tendered a general plea of guilty, and was sentenced to a term of three years on each charge, the sentences to run consecutively.
At the habeas corpus proceeding in the Circuit Court of Bedford County, Fields testified that the appointed attorney failed to question him concerning the facts of the alleged offenses. Nor did the attorney ask Fields if he was guilty before advising a guilty plea on both charges upon the representation that the Commonwealth would probably recommend a three year sentence.
This testimony of the petitioner was not directly contradicted, counsel having no specific recollection of his actions in the case, although he testified that it was his customary practice to question his clients. He assumed that he had made some notes concerning the case, but suggested that if he had, they were lost. It was his “recollection” that Fields was unable to provide a defense, although he forthrightly admitted that he did not recall going over the facts in detail with the defendant. The lawyer testified that he believed the statutory burglary charge involved breaking and entering the “cabin.” This is the only point in the record where a specific fact regarding the alleged burglary is mentioned.
The state habeas court made the following specific findings:
[T]he total amount of time which elapsed from appointment of counsel to the actual sentencing of the Petitioner amounted to fifteen or thirty minutes and * * * the sole person talked to by Court appointed counsel for the Petitioner was the Commonwealth’s Attorney who prosecuted the case and * * * the only conference held between Petitioner and his court appointed counsel occurred on the day of trial just prior to the trial in the Court room while Court was in session.
(Quoted in Peyton v. Fields, 207 Va. at 43, 147 S.E.2d at 765.) The Bedford County Judge granted the petition for habeas corpus because, in his view, the case came within the doctrine laid down in Whitley v. Cunningham, 205 Va. 251, 135 S.E.2d 823 (1964). That case held that where defense counsel was appointed the morning of the trial and spent an hour or less in preparation, the defendant was denied the effective assistance of counsel.
The Supreme Court of Appeals, however, viewed the facts in Whitley as being “vastly different” from those in the present case. It noted that in Whitley, the defendant had given several confessions, and defense counsel had to prepare for a trial involving ten or twelve indictments for robbery and grand larceny. The Whitley court concluded that it was impossible for any attorney to read and understand the numerous indictments and confessions in the short span of time allotted to him. In Fields’ case, the court held Whitley not controlling, emphasizing that Fields had failed to adduce evidence that he was prejudiced by any act or omission of counsel. On this basis, the Supreme Court of Appeals of Virginia reversed the lower court and set aside the writ of habeas corpus.
When Fields presented his petition to the federal District Court, it accepted the facts as found by the state habeas court but, assuming that the Supreme Court of Appeals had applied principles “consistent with those stated in Dawson v. Peyton,” 359 F.2d 149 (4th Cir. 1966), dismissed the petition.
Appellant contends that the federal law as declared by this circuit is in direct conflict with the test applied by the Virginia Supreme Court of Appeals. He maintains that the Virginia court has placed the burden upon the defendant to prove that he suffered prejudice from the late appointment of counsel, whereas the federal rule is that when inadequate time for preparation has been shown, the burden shifts to the state to negate prejudice. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) has declared that although a district judge may accept a state court’s findings of fact where the state court has reliably found them after a full and fair hearing, he must independently apply the appropriate federal law. Appellant accordingly argues that under the command of Townsend his petition should have been granted. We agree with appellant’s analysis.
The District Court would appear to have misinterpreted Dawson v. Peyton, supra, if it read that decision as expounding a principle identical with that articulated by the Supreme Court of Appeals in Fields’ case. Dawson stands for no more than the proposition that where the record contains adequate affirmative proof that the defendant was not prejudiced despite the lack of time for preparation, we will not find a denial of effective representation. It does not put the burden of proof as to prejudice on the defendant, once inadequate representation has been established.
In Dawson, the records in both the state and the federal courts revealed facts “strikingly at variance with the allegations contained in the petition.” 359 F.2d at 150. It was shown that although counsel was appointed on the morning of the trial, he already was familiar with the defendant’s background,, and following his appointment, diligently made further inquiry into the relevant circumstances. Dawson’s attorney had earlier been asked by the court to represent the co-defendants as well, but on discovering the possibility of a conflict of interest, requested the court to appoint other counsel to represent them. Dawson’s counsel then discussed the case with him in a conference room of the court, and not, as happened in the present case, in the courtroom itself while court was in session. There was undisputed testimony that the attorney spoke not only with the client, but with his parents, as well as with the sheriff of the county. He also interviewed the co-defendants individually, and later talked to them and the defendant together. The attorney then confronted defendant with apparent divergences between his version and that obtained from other sources. Only after taking these careful measures, did the attorney give Dawson his considered advice. In sum, the record completely refuted any notion of perfunctoriness or inadequacy in the lawyer’s services to the defendant.
This is in sharp contrast to the facts in the present case, where there is no affirmative evidence whatever to overcome the presumption of prejudice from the shortness of time allowed for preparation. We have elsewhere said that
when the initial consultation between a court-appointed attorney and his client occurs only a short time before the trial, “normally, in the absence of clear proof that no prejudice resulted, we should be obliged .to treat the lawyer’s representation as inadequate and the trial as falling short of the standards of due process guaranteed by the Fourteenth Amendment.” Turner v. State of Maryland [318 F.2d 852, 854 (4th Cir. 1963).]
Martin v. Com. of Virginia, 365 F.2d 549, 552 (4th Cir. 1966). (Emphasis supplied.)
Not only have the courts of this circuit and of the Commonwealth of Virginia repeatedly condemned the practice of appointing counsel too shortly before trial, see e. g., Martin v. Com. of Virginia, supra; Turner v. State of Maryland, supra; Edgerton v. State of North Carolina, 315 F.2d 676 (4th Cir. 1963); Jones v. Cunningham, 313 F.2d 347 (4th Cir. 1963); Whitley v. Cunningham, supra (citing our Jones v. Cunningham), but the Attorney General of Virginia has candidly recognized that it is undesirable and has recommended that the courts of Virginia abandon what remains of the practice. Martin v. Com. of Virginia, 365 F.2d at 554.
Doubtless in the past there have been numerous instances of the designation of counsel on the day of the trial and even in the last hour before trial. The procedure, however, is no longer considered satisfactory for it invites lax performance of professional duty and endangers defendants’ constitutional right to the effective assistance of counsel. Analogously, before the Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), when the Betts v. Brady rule still held sway, many indigent defendants were not only put on trial without being told that they were entitled to have appointed counsel if they so desired, but not infrequently they were denied the benefit of counsel even when they specifically requested it. As the concept of the Sixth Amendment right has broadened to encompass the provision of counsel for indigents, so too the standards to which appointing courts and appointed counsel must adhere have become more exacting. Courts are required to allow counsel sufficient time to inform themselves fully, to reflect maturely and to prepare thoroughly in the cases to which they are assigned, and courts can no longer tolerate perfunctory performance by appointed lawyers of the duty owed to indigent defendants.
In the recent decision of Twiford v. Peyton, 372 F.2d 670 (4th Cir. 1967), Judge Winter, speaking for this court, clearly pointed out that the practice of appointing counsel in a felony case so close to trial that the lawyer is not “afforded a reasonable opportunity to investigate and prepare a ease” is
inherently prejudicial, and a mere showing * * * [of the late time of appointment] constitutes a prima facie case of denial of effective assistance of counsel, so that the burden of proving lack of prejudice is shifted to the state.
372 F.2d at 670. (Emphasis supplied.) As was observed in that opinion, we have on occasion found that effective representation was not denied where the record contained adequate affirmative evidence to overcome the presumption of harm from the lack of time for preparation. See, e. g., Braxton v. Peyton, 365 F.2d 563 (4th Cir. 1966); Dawson v. Peyton, supra; Turner v. State of Maryland, 318 F.2d 852 (4th Cir. 1963). The general rule, however, is that the
inherent danger of prejudice to the client where the attorney allows himself, or is restricted to, such a short time to ready himself for a criminal trial makes additional inquiry futile and unnecessary.
Martin v. Virginia, 365 F.2d at 552. (Emphasis supplied.) Here, opportunity for consultation was limited both as to time and as to circumstance. There could be no more than a few minutes’ whispered conversation in the rear of the courtroom, amid the distractions of proceedings in progress and under pressure of the defendant’s approaching trial. We think that “[t]his was hardly the atmosphere to generate that confidence which should exist between attorney and client, or to invite the kind of free communication between them which is essential.” 365 F.2d at 553.
The State has failed to introduce evidence to counter the lack of due process implicit in Fields’ sentence to six years in prison within fifteen or thirty minutes of the appointment of counsel. Most respectfully we disagree with the Supreme Court of Appeals’ listing of several factors which it viewed as indicating that appellant had not been prejudiced. The court’s opinion states that the “evidence conclusively establishes * * * that there was no defense which could have been offered to the two relatively simple charges.” 207 Va. at 45, 147 S.E.2d at 766. No such finding was made by the state habeas court, however, nor do we find adequate support for this conclusion in the record, which is at best sketchy regarding the facts of Fields’ offense. Court-appointed counsel testified somewhat vaguety that he believed the statutory burglary charge was predicated on the breaking and entering of a “cabin” during the hour the defendant was at large. Depending upon the location of this “cabin” and its customary-use, it is questionable whether the “cabin” constituted a “dwelling house or an outhouse adjoining thereto and occupied therewith” within the meaning of either of the two burglary statutes under which the defendant was charged. At least this was a subject calling for further inquiry by the defense lawyer. Another possible point to be probed by the attorney was whether the defendant had broken into the “cabin” with an intent to commit a larceny or a felony therein, as required for a conviction under the statutes. These are not matters that a layman is competent to handle, and even a trained lawyer needs time to make a proper assessment of the facts and the applicable law. Pertinent questions might also have occurred to the mind of a competent and unhurried attorney in respect to the circumstances of the escape to disclose grounds for mitigation of the severe sentence, if not as a defense.
Federal courts do not retry state cases, but these matters are mentioned to illustrate paths that were open for exploration but were disregarded for lack of time. This was less than effective representation. Cf. Martin v. Com. of Virginia, 365 F.2d 549, 552-553 & nn. 4-5 (4th Cir. 1966).
Mention has also been made of Fields’ “previous criminal court experience” as indicative of the lack of prejudice. His experience appears to have been a single conviction, the one for which Fields was undergoing punishment when he escaped; he was then not yet 21 years of age. However, this is no longer a valid approach since the holding in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that the right to counsel is a fundamental right, essential to a fair trial. The right is not conditioned on the absence of a past criminal record.
For these reasons the order of the District Court must be reversed. Since the State has disavowed an intention to retry the defendant, the District Court is directed to issue the writ of habeas corpus ordering the Commonwealth to release him from the burden of the judgment imposed on July 7, 1959, and credit him with any time served on the sentences here invalidated.
Reversed and remanded with directions.
. In Martin, we quoted with favor a passage from the District Court’s opinion analyzing the case law dealing with the effectiveness of the representation provided by court-appointed counsel:
The appellate courts have insisted that ample time he allowed counsel for preparation. * * * [A] showing of actual prejudice is not the basis on which these cases rest. The lack of opportunity for investigation, reflection, conference, and mature consideration which results from trials of felonies immediately after appointment of counsel provides the basis for granting the writ.' * * * The burden isn’t on the petitioner to show that he would profit by a trial in which counsel had more time for preparation. Lack of due process is implicit when a felon is tried immediately after the appointment of counsel. * * * To hold otherwise simply invites courts to continue the procedure that leads to pro forma representation.
365 F.2d at 551. (Emphasis supplied.)
Indeed, in the very case before us, the same District Judge correctly articulated the proper constitutional standard to be applied:
[Petitioners were not required to show precisely how they had been prejudiced by the brief time allotted counsel for the preparation of their cases. To insist that a petitioner show prejudice often requires him to establish by his own efforts those things for which the law recognized he needed the assistance of counsel in the first place.
. Va.Code Ann. §§ 18-160 & 18-161 (1950), now §§ 18.1-88 & 18.1-89 (Supp.1960).
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_appfiduc
|
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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Juanita STONE, Individually and as Executrix under the last Will and Testament of Oliver H. Stone, Deceased, Appellant, v. UNITED STATES of America, and Mary Jane Shackelford, Appellees.
No. 17780.
United States Court of Appeals Fifth Circuit.
Dec. 8, 1959.
Albert W. Copeland, Montgomery, Ala., Godbold, Hobbs & Copeland, Montgomery, Ala., of counsel, for appellant.
M. Roland Nachman, Jr., Hartwell Davis, U. S. Atty., Paul L. Millirons, Asst. U. S. Atty., Montgomery, Ala., Walter J. Knabe, Birmingham, Ala., and Knabe & Machman, Montgomery, Ala., of counsel, for appellee Shackelford.
Before RIVES, Chief Judge, and BROWN and WISDOM, Circuit Judges.
WISDOM, Circuit Judge.
The dispute in this case is between the divorced wife and the widow of an insured veteran. Each asserts the right to the proceeds of a National Service Life Insurance policy in the amount of $10,-000. The question for decision is whether the insured, Oliver Stone, effected a valid change of beneficiary from Mary Jane Shackelford, his divorced wife, to Juanita Stone, his widow, in spite of his failure to notify the Veterans Administration of a change of beneficiary.
Mrs. Stone, individually and as executrix, sued Mrs. Shackelford and the United States of America under the National Service Life Insurance Act of 1940, 38 U.S.C.A. § 801 et seq., and the World War Veterans Act of 1924, as amended, 38 U.S.C.A. § 445. The district court granted summary judgment for Mrs. Shackelford based on the pleadings, the testimony of Mrs. Stone and her attorney, and the administrative file of the Veterans Administration showing an agency determination in favor of Mrs. Shackelford. Mrs. Stone appeals from the summary judgment. We reverse and remand.
This Court is no stranger to appeals in which we are required to eon-sider whether a change in beneficiary is effective that does not comply with the terms of a National Service Life Insurance' policy. The legal principles furnishing the basis for these holdings are relatively simple and well settled. The cases are unanimous in the view that courts will brush aside legal technicalities in order to effectuate the manifest intent of the insured. Mere intent however is not enough: there must be some affirmative act on the part of the insured evidencing an exercise of the right to change the beneficiary. Ferguson v. Knight, 5 Cir., 1959, 264 F.2d 176. The difficulty comes in determining the kind and degree of affirmative action necessary to effect a change. As stated in Mitchell v. United States, 5 Cir., 1948, 165 F.2d 758, 760, 2 A.L.R.2d 484:
“The cases are also unanimous that a mere intent to change a beneficiary is not enough. Such an intent must be followed by some affirmative act on the part of the insured evidencing an exercise of the right to change the beneficiary. Where the courts differ is as to the degree of affirmative action necessary to effect a change. Literal compliance with the provisions of a policy is never necessary.”
Again in the Mitchell opinion this Court said:
“These insurance cases are difficult of decision. Each must be decided in the light of its own facts. * * * It is said that a combination of intent and act is required, but to say in these insurance cases that though intention to change the beneficiary is proved to the hilt, no effective formal act having been done no change can be held to have been made, is not to brush technicalities very far.”
In the instant case the district court found that “the most favorable inference in support of [appellant’s] position * * is that the insured thought his National Service Life Insurance was payable to his estate”; but “mistaken belief, without more, is not sufficient”. The appellant contends that in a record clearly showing intent to change the beneficiary, a property division agreement at the time of the divorce, decedent’s probated will, and his suicide note furnished proof of affirmative action. The effect of these matters must be considered cumulatively and in the light of the record as a whole.
In 1942 the veteran was issued a National Service Life Insurance policy for $10,000 on the level premium term plan. The insurance lapsed for non-payment of premiums. In 1950, the insurance was reinstated on the five-year level premium plan. This insurance policy lapsed for non-payment of premiums due May 1, 1954, August 1, 1955, and November 1, 1955, but each time was reinstated. The policy was in force on November 15, 1957 when the insured committed suicide.
There were numerous changes of beneficiary. On the original application the insured designated Mary Shackelford Stone, then his wife, now the defendant Mary Jane Shackelford, as the principal beneficiary and Oliver Hardie Stone, Jr., his son by another marriage, as the contingent beneficiary. The division of the $10,000 between Mary Shackelford Stone and Oliver Hardie Stone, Jr. was changed by the insured on January 28, 1947, and again on February 7, 1949. On September 15, 1950 the veteran designated his wife as the sole beneficiary. On January 27, 1954 the veteran designated his son as the sole beneficiary. On March 9, 1954 the veteran changed the beneficiary back to Mary Shackelford Stone. This is the last designation of beneficiary on record. These changes in beneficiary were accomplished by execution of appropriate VA forms.
The changes in the designation of beneficiary coincided with changes in the decedent’s will. They reflected the state •of harmony or discord prevailing in the Stones’ marital strife. Oliver Stone and Mary Jane Shackelford were married fifteen years. In January, 1954 she filed suit for divorce. January 27, 1954 the veteran named his son as sole beneficiary. Before the divorce suit was tried, ~a reconciliation took place and the divorce suit was dismissed. The veteran then again designated his wife as beneficiary. The reconciliation was short-lived. In the summer or fall of 1955 Mr. and Mrs. Stone went to the office of II. T. Fitzpatrick, Jr., an attorney, to discuss •divorce proceedings. Mr. Fitzpatrick had represented the veteran since 1949 in a number of mortgage matters, in the preparation of four or five wills, and in the 1954 divorce proceedings.
In a deposition Mr. Fitzpatrick stated That the parties advised him that they “had both worked out the main essence of their divorce agreement between themselves”. Mrs. Shackelford had prepared and presented to Mr. Fitzpatrick a detailed list of personal property which she was to receive in addition to a cash settlement of $8,000. At this conference and in later conferences there was no specific •discussion of insurance. Mr. Fitzpatrick testified, however, that he “discussed both with her and with him that anything not named on this list in his (her) name would belong to him”. The in-ventory of items which Mrs. Shackelford was to receive did not include any insurance. There was a delay in order to allow Mr. Stone to sell part of his real estate to raise the $8,000 needed for the cash settlement.
The divorce decree incorporated the settlement agreement of the parties. Paragraph 4 of the agreement provides:
“In consideration of the payment of said sum of $8,000.00 and of the transfer of said personal property, first party [appellee Shackelford] waives all further rights to alimony or support and maintenance by second party [Mr. Stone] and waives all of her right, title and interest, if any, in and to the property of second party.”
The divorce negotiations were “bitter and filled with animosity”, according to the appellant. Mrs. Shackelford and Mr. Stone bickered over the divorce and the settlement provisions. The list of items to go to Mrs. Shackelford was fought over down to “whether she was to take all the flowers and trellises in the yard”. Mr. Stone told the appellant and others that he “would rather cut off his right arm” than pay Mrs. Shackelford the $8,000 settlement. The bitterness continued after Mr. Stone’s marriage to appellant; Mrs. Stone said that Mrs. Shackelford would telephone, then talk to her in vulgar terms.
On January 21, 1956 Mr. Stone married the appellant. In March Mr. Stone had Mr. Fitzpatrick prepare a new will. In this will Mrs. Juanita Stone was the sole beneficiary, except for a cash bequest of $2,000 to an old servant. Mr. Fitzpatrick testified that he inquired as to the insurance particularly because he was concerned as to how this cash bequest would be paid. Mr. Stone told Mr. Fitzpatrick on this occasion and on several other occasions that the insurance was payable to his estate. Mrs. Juanita Stone testified that her husband informed her that the policy was payable to the estate. Several times he made an equivalent statement in the presence of friends. An affidavit of Mr. Fitzpatrick states, in part: “I know of my own knowledge that it was not Oliver H. Stone’s intention that his former wife receive the proceeds of his National Service Life Insurance policy, but that he intended the same to be payable to his estate, and to be controlled by the provisions of his last will and testament.”
In December, 1956 Mr. Stone attempted to kill himself. At that time he left a note to his wife, Juanita Stone, reading:
“Baby: You have been a sweet, considerate and lovable wife. What has happened has been building up for sometime. Please take care of what little I leave you and for you alone. My will and insurance policies are in the steel box in the den. See Tom Fitzpatrick, Jr., for legal matters and Jim Flowers for sound advice. Be considerate of Matt, he will always help you. Bye, Papa [Over] Graveside funeral and request no flowers.”
About one year later Mr. Stone did commit suicide. No note was found.
This Court has recently considered the effect of a settlement agreement on insurance policies designating a divorced wife as beneficiary. In O’Brien v. Elder, 5 Cir., 1957, 250 F.2d 275 the insured and his wife were divorced three months before the insured’s accidental death. One of the policies was a National Service Life Insurance contract. The Florida probate court ordered the policies delivered to the former wife and the Veterans Administration determined that the former wife was the beneficiary under the National Service Life Insurance policy. This Court reversed, not on the ground that the agreement effected a change of beneficiary but on the ground that the settlement agreement operated as a relinquishment of the divorced wife’s rights under the insurance contracts, although in Florida the law is plain that such rights must be characterized only as an expectancy. The O’Brien agreement was very similar to the Stone agreement. In the O’Brien case the parties stipulated that neither “shall have any claim on the other party of any kind whatsoever, including that for alimony” [250 F.2d 279]. In this case Mrs, Shackelford “waives all further rights to alimony or support and maintenance” and “waives all of her right, title and interest, if any, in and to the property of second party”. The line is fine indeed between (1) “any claim” and (2) “all of her right, title and interest, if any, in- and to the property” of her husband. In. O’Brien this Court read the agreement, as expressing “the intention by each party to release and relinquish any and all' interests”, treating “interest” and' “claim” as equivalents. In both cases the-agreements were meant to accomplish-the same object: to wipe the slate clean¡ between the parties.
As we see it, however, it is not. necessary to decide that Mrs. Shackelford’s interest, though only an expectancy, is an “interest” subsumed under the-release in the agreement. In line with, our previous decisions, technical precision in these matters is not required.. Under those decisions, it would be sufficient to establish (1) that Mr. Stone entered into the settlement agreement with, the intention that it would operate to terminate Mrs. Shackelford’s status as beneficiary under this policy, (2) that upon the execution of the agreement Mr. Stone-believed that Mrs. Shackelford’s status as. beneficiary had in fact been terminated,, and (3) that Mr. Stone’s belief in this regard was a reasonable one. The first two-of these three elements are pure questions of fact upon which Mrs. Stone has. offered direct evidence which, if credited by a jury, would justify determinations on those issues in her favor. The third. element involves a mixed question of law and fact and it is that element which the district judge ruled was lacking in this case as a matter of law.
In this Court’s recent decision in Hawkins v. Hawkins, 5 Cir., 1959, 271 F.2d 870 it was held that where the veteran had divorced the designated beneficiary on grounds of adultery, it could not be said as a matter of law that a subsequent belief that such divorce operated to change the beneficiary of an NSLI policy would be unreasonable. There, as here, the Court was confronted with evidence which, if credited, would tend to establish in a convincing manner that the veteran intended to change the beneficiary of his policy and thought that he had done so. We held: “[T]he jury can evaluate the fact of a divorce coupled with the peculiar circumstances surrounding it in order to determine whether the serviceman has done all that he thinks is reasonably necessary to accomplish a change.”
The settlement agreement, though perhaps not sufficient to constitute a relinquishment of Mrs. Shackelford’s beneficiary status under the law of Alabama, is an affirmative act by the Insured indicative of his intent to cut his former wife out of the insurance and any other property not listed in the agreement as belonging to her. There is other evidence.
There is substantial evidence that Mr. Stone believed that his insurance was payable to his estate. This may have been a mistaken belief, but the act of remaking his will in favor of Juanita Stone on the assumption that the insurance was payable to his estate was an affirmative act on his part to see that his widow received his insurance, not his estranged ex-wife.
The suicide note contains an express reference to the insurance. In this note Stone stated that what little he had was for his widow “alone”. In the next sentence he informed her where to find the insurance policy. Here again we are not concerned with the legal effect of the writing, but the writing is an affirmative act extending beyond a mere intent.
Summarizing, (1) there is substantial evidence of the insured’s continuing intention to change the beneficiary, (2) undisputed evidence of his belief that he had changed the beneficiary, and (3) strong evidence that the natural object of his bounty was his widow, not his estranged and bitter former wife. Because of these and similar circumstances which reduce the possibility of fraud and the danger of a miscarriage of justice, courts have allowed claimants in this type of case some latitude in attempting to prove their claims. We hold therefore that considering the settlement agreement, the will, the suicide note, and the record as a whole there is sufficient evidence supporting the appellant’s contentions to raise a genuine issue of fact for the jury to decide.
We recognize that Mrs. Shackelford was not an unnatural object of Stone’s bounty. She lived and worked with Oliver Stone for fifteen years. She too contributed to building and preserving whatever estate he had — -with no more than an expectancy as her award. Perhaps a jury, on the same record, might decide exactly as the trial judge decided. We believe, however, that it is in the interest of justice that this case be decided by a jury after a full trial rather than by the district judge on a motion for summary judgment.
The judgment is reversed and remanded.
Now 38 U.S.C.A. § 701 et seq.
Now 38 U.S.C.A. § 784(a-h).
. Ferguson v. Knight, 5 Cir., 1959, 264 F.2d 176; O’Brien v. Elder, 5 Cir., 1957, 250, F.2d 275; Kell v. United States, 5 Cir., 1953, 202 F.2d 143; Watson v. United States, 5 Cir., 1950, 185 F.2d 292; Bowens v. United States, 5 Cir., 1950, 184 F.2d 730; Butler v. Butler; 5 Cir., 1949, 177 F.2d 471; Hester v. Hester, 5 Cir., 1948, 171 F.2d 477. Cf. Gann v. Meek, 5 Cir., 1948, 165 F.2d 857; McKewen v. McKewen, 5 Cir., 1948, 165 F.2d 761; Mitchell v. United States, 5 Cir., 1948, 165 F.2d 758, 2 A.L.R.2d 484.
. Mr. Fitzpatrick testified that the insured increased the cash bequest on the assumption that the proceeds of the policy would go to his estate. Without the proceeds, the estate did not contain sufficient funds to cover the cash bequest.
. Alabama law is the same. Merchants’ National Bank of Mobile v. Hubbard, 1929, 220 Ala. 372, 125 So. 335.
. In United States v. Pahmer, 2 Cir., 1956, 238 F.2d 431, the insured left a last will written immediately before his suicide. The instrument failed as a will. In it, however, the insured directed that his mother receive his NSLI benefits rather than his wife whom he had previously designated to the Veterans’ Administration. The Second Circuit reversed an award in favor of the wife on the basis of" the will operating as an affirmative act.
. In Butler v. Butler, 5 Cir., 1949, 177 F.2d 471, 472, holding that the insured had not effectively changed the beneficiary, this Court said: “It is evident that the insured knew who was named as beneficiary in his policies and failed to make any change therein.”
. See cases collected in Annotation, 2 A.L.R.2d 484.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
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songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Frank V. ESPOSITO, Appellant, v. UNITED STATES of America, Appellee.
Nos. 25291, 25292.
United States Court of Appeals, Ninth Circuit.
Dec. 23, 1970.
John P. Foley, Las Vegas, Nev. (argued), for appellant.
Bart M. Schouweiler, U. S. Atty., Las Vegas, Nev. (argued), for appellee.
Before ELY and HUFSTEDLER, Circuit Judges, and BYRNE, District Judge.
Honorable William M. Byrne, United States District Judge, Central District of California, sitting by designation.
BYRNE, District Judge:
In Case No. 25,291, appellant, with other individuals, was charged by indictment with receiving, concealing, selling and facilitating the transportation of heroin on July 10, 1964, in violation of Section 174, Title 21, United States Code. He was convicted by jury verdict on April 13, 1965, and on the following day entered a plea of guilty to an additional two charges involving marihuana (Case No. 25,292). He was sentenced to imprisonment for a term of eight years on each of the three charges, the sentences to run concurrently.
Subsequently, the appellant filed motions to vacate his sentences, charging (1) on the heroin conviction, the judge gave an erroneous instruction on entrapment, and that neither the judge nor retained counsel advised him of his right to appeal, and (2) on the marihuana sentences, the judge failed to ascertain if the guilty pleas were made voluntarily with understanding of the nature of the charges.
On the heroin conviction, the trial court denied the motion to vacate. In the marihuana cases the Court set aside the guilty pleas and sentences, citing the failure of the trial judge to fully comply with the requirements of Rule 11, Federal Rules of Criminal Procedure. Appellant appealed from the denial of his heroin motion and the government appealed from the granting of the motions in the marihuana cases.
This Court remanded all matters for further hearings. United States v. Es-posito, 415 F.2d 1112 (CA 9, 1969). The heroin case was returned for a hearing in light of Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (June 2, 1969), which had not been decided at the time Esposito was sentenced. The marihuana cases were returned to determine if the guilty pleas were voluntarily made with full understanding of the nature of the charges and the consequences of the pleas with specific reference to Castro v. United States, 396 F.2d 345 (CA 9, 1968), which had not been decided at the time Esposito entered his pleas.
Upon remand the trial court set aside the original sentence in the heroin case and re-sentenced appellant to imprisonment for a period of eight years. The court also vacated its previous order and reinstated the convictions upon the guilty pleas and sentences in the marihuana cases. All sentences were ordered to run concurrently. Appellant is appealing the three convictions in these two consolidated cases.
No. 25,291 (heroin conviction)
The primary purpose for which this case was remanded, i. e. whether the judge or retained counsel advised appellant of his right to appeal in light of Rodriquez v. United States (supra), has become moot. The trial court set aside the original sentence and re-sentenced the appellant. If any error existed, it has been corrected, and the appellant has abandoned this point.
The appellant again urges his claim that the trial court’s instruction on entrapment was reversible error, and relies on this Court’s holding in Notaro v. United States, 363 F.2d 169 (CA 9, 1966).
Assuming, arguendo, that the court’s entrapment instructions were ambiguous or otherwise erroneous, the appellant’s attorney interposed no objection to them, nor did the appellant submit a requested alternative instruction bearing upon the issue. In such circumstances, our Court has previously held that it will “decline to invoke the ‘plain error’ rule.” Nordeste v. United States, 393 F.2d 335, 340 (9th Cir. 1968). Cf. Pratti v. United States, 389 F.2d 660 (9th Cir. 1968).
The appellant asserts several claims of error in addition to those for which the case was remanded. We have carefully examined each of them and find them to be without merit.
No. 25,292 (marihuana convictions)
Upon remand, the trial court, after a hearing held on November 28, 1969, having had its attention directed to Castro v. United States, supra, in which this Court held Heiden v. United States, 353 F.2d 53 (CA 9, 1965) was not to be applied retroactively, vacated its previous order, and the convictions upon appellant’s guilty pleas and the sentences which followed were reinstated. The Court found the pleas were voluntarily made with full understanding of the nature of the charges and the consequences of the pleas. Appellant is here appealing the reinstatement of the convictions.
The appellant contends that the trial court did not comply with the provisions of Rule 11 Federal Rules of Criminal Procedure. Initially he urged the application of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), but in his reply brief, he acknowledged the Supreme Court’s decision in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) in which the court held that McCarthy was not applicable to guilty pleas accepted prior to April 2, 1969. The pleas in the instant case were entered April 14, 1965. Nevertheless, he continues to assert that the trial court’s acceptance of the guilty pleas was not in accord with the then governing standards which had been established by this Court.
In April, 1965, when the appellant changed his plea from not guilty to guilty, Rule 11 provided that the trial court should not accept a plea of guilty “ * * * without first determining that the plea is made voluntarily with understanding of the nature of the charge.”
The record plainly shows, from a lengthy colloquy between the judge and the appellant, that the pleas were voluntary and made with a clear understanding of the nature of the charges. These pleas met the criteria set forth in Munich v. United States, 337 F.2d 356 (CA 9, 1964), which was the leading case on this issue at the time of the pleas in question.
The appellant also contends that this Court erred in remanding for a determination, in light of Castro v. United States, supra, whether the pleas were made voluntarily with full understanding of the nature of the charges and the consequences of the pleas. In support of his assertion he relies on McCarthy v. United States, supra, and Rodriquez v. United States, supra.
As we pointed out above, the Supreme Court declined to apply McCarthy retroactively. Halliday v. United States, supra. As a consequence, the appellant must rely solely on Rodriquez. In that case, the Supreme Court felt a further remand was unnecessary since the record clearly showed the deprivation of defendant’s right to appeal. The Supreme Court did not disapprove of remands where the Court felt the record was not totally dispositive of the issue involved. In the light of recent Supreme Court decisions, this Court decided to erase any measure of doubt as to the validity of the trial court's ruling. This Court’s action was not inconsistent with Rodriquez because the record of the instant case was hardly analogous to the obvious error present in the Rodriquez transcript.
It follows that appellant’s claim that it was error for the trial court to conduct the hearing must also be rejected as lacking in merit.
At the hearing ordered by this Court, the government called Attorney Harry Claiborne as a witness. The appellant’s present attorney objected to Claiborne’s testimony on the ground that it was vio-lative of the attorney-client privilege. The objection was overruled.
Claiborne testified that he met with the appellant after the jury had returned the guilty verdict in the heroin case. He told Esposito that he faced a minimum of five years imprisonment and that it probably would be increased to ten to forty years if he were convicted of the two marihuana charges. Claiborne further testified that he advised Esposito to plead guilty. He also told his client:
“I had an idea that maybe 4208 might apply in this case. I didn’t represent to him it did. I told him I was going to have to bring it to the court’s attention and urge the court that it might apply, and express to the court in my opinion it could apply.”
While it is true that an attorney cannot waive the privilege, in this case it is clear that the statements and advice expressed to the appellant were not confidential. It is obvious that these remarks would be repeated to the Court the next day. The subject matter of this conference was such that no reasonable person could have expected it would later be deemed protected by the attorney-client privilege. See United States v. Shibley, 112 F.Supp. 734 (S.D.Calif.1953); United States v. Tellier, 255 F.2d 441 (CA 2, 1958) cert. den. 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62.
We find no merit in Esposito’s remaining assertions of error.
Affirmed.
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_appel2_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 second 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.
TELECOMMUNICATIONS RESEARCH AND ACTION CENTER and Media Access Project, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, National Association of Broadcasters, Public Broadcasting Service, American Newspaper Publishers Association, Intervenors.
No. 85-1160.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 20, 1986.
Decided Sept. 19, 1986.
As Amended Sept. 19, 1986.
Rehearing En Banc Denied Dec. 16, 1986.
Robert M. Gurss, with whom Andrew Jay Schwartzman and Henry Geller, Washington, D.C., were on brief, for petitioners.
C. Grey Pash, Jr., Counsel, F.C.C., with whom Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., John J. Powers, III and Margaret G. Halpern, Attys., Dept, of Justice, Washington, D.C., were on brief, for respondents.
Richard E. Wiley, Michael Yourshaw, William B. Baker and W. Terry Maguire, Washington, D.C., were on brief, for inter-venor, American Newspaper Publishers Assn.
Henry L. Baumann, Michael D. Berg and Steven A. Bookshester, Washington, D.C., entered appearances for intervenor, National Ass’n of Broadcasters.
Peter Tannenwald, Lawrence A. Horn and Barbara S. Wellbery, Washington, D.C., entered appearances for intervenor, Public Broadcasting Service.
Before BORK and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BORK.
Opinion concurring in part and dissenting in part filed by Senior Circuit Judge Mac-KINNON.
BORK, Circuit Judge:
Petitioners challenge the Federal Communications Commission’s decision not to apply three forms of political broadcast regulation to a new technology, teletext. Teletext provides a means of transmitting textual and graphic material to the television screens of home viewers.
The Communications Act of 1934, 47 U.S.C. § 312(a)(7) (1982), requires broadcast licensees to “allow reasonable access... for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.” In addition, under 47 U.S.C. § 315(a) (1982), if the licensee “permit[s] any person who is a legally qualified candidate for any public office to use a broadcasting station,” he or she incurs the additional obligation of “afford[ing] equal opportunities to all other such candidates for that office.” Complementing these statutory.provisions, there exists a form of political broadcast regulation that the Commission created early in its history in the name of its mandate to ensure the use of the airwaves in the “public ‘convenience, interest, or necessity.’ ” See Red Lion Broadcasting v. FCC, 395 U.S. 367, 376-77, 89 S.Ct. 1794, 1799, 23 L.Ed.2d 371 (1969). The “fairness doctrine,” as this policy is known, “provides that broadcasters have certain obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” 47 C.F.R. § 73.1910 (1985).
The case before us presents the question whether the Commission erred in determining that these three political broadcast provisions do not apply to teletext. Because we find that the Commission acted reasonably with respect to section 312(a)(7) and the fairness doctrine, but erroneously held section 315 not to apply to teletext, we affirm in part and reverse in part, and remand to the Commission for further proceedings.
I.
The technologically novel element of teletext service is its utilization of an otherwise unused portion of the television broadcast signal. Television signals are not continuous but are sent in pulses. The human eye retains the image from one pulse to the next so that the picture is perceived as uninterrupted. The time between the pulses of regular television broadcasting (“main signal” transmission) is known as the "vertical blanking interval,” and can be used for pulses that constitute teletext transmission. As treated by the Commission in the docket now before us, “teletext” refers exclusively to such over-the-air transmissions, and not to transmission of text and graphics by way of cable or telephone. Main signal operators now control and operate teletext, though the FCC has authorized the operation of teletext “on a franchise basis” or through the “leaspng] of space to multiple users.” See Report and Order, 53 Rad.Reg.2d (P & F) 1309, 1321 (1983). The Commission, however, admonished licensees “that they remain responsible for all broadcast related teletext provided via the station’s facilities, whether produced in-house or obtained from outside sources.” Id.
To receive teletext, the viewer must have a device to decode the signal carrying the textual information and graphics. Currently, viewers may purchase teletext decoders in retail stores selling television sets. In the future, at least some television manufacturers will build decoding equipment into selected television models. Broadcasters of teletext thus have no control over who obtains the ability to decode teletext signals.
The teletext viewer begins typically by watching the display of a table of contents, which indicates what information is available and at which pages it appears. A “page” is a screen of information. Viewers may then view the information they want by flipping to the page where the desired material appears. Present teletext programming includes data of general interest such as news, sports, weather, community events, and advertising, though nothing precludes broadcasters from displaying information that appeals to audiences with special interests. Main channel broadcasting may notify viewers of material available on teletext. While teletext can display text and high-resolution graphics, no sound accompanies the visual transmissions under teletext technology. Teletext is supported by advertiser fees and involves no charge to the public.
On November 27, 1981, the FCC released a Notice of Proposed Rulemaking to explore possible authorization for television stations to operate teletext systems. See 46 Fed.Reg. 60,851 (1981). The Commission announced its goal "to provide a regulatory environment that is conducive to the emergence and implementation of new technology and new uses of the [broadcast] spectrum.” Id. The Commission added that “[i]n the case of teletext, the available evidence appears to indicate that the forces of competition and the open market are well suited to obtaining the kinds and amounts of service that are most desirable in terms of the public interest.” Id. at 60,852. The Notice therefore proposed that “teletext... be treated as an ancial-lary [sic] service” and that “[s]tations... not be required to observe service guidelines or other performance standards.” Id. at 60,853.
In its Report and Order, 53 Rad.Reg.2d (P & F) 1309 (1983), the Commission addressed the applicability of political broadcast requirements to teletext and concluded that “as a matter of law,... sections [312(a)(7) and 315] need not be applied to teletext service,” and that applying these provisions would be “both unnecessary and unwise as a matter of policy.” Id. at 1322. Moreover, the Commission “conclude[d] that the Fairness Doctrine should not be applied to teletext services.” Id. at 1324. Thus, the Report and Order sought to adopt an approach of non-regulation of teletext under any of the political broadcasting provisions administered by the FCC.
The Commission noted that section 312(a)(7) guarantees federal candidates only “ ‘reasonable access’ ” to “a broadcasting station” and considered what access would be “reasonable” when dealing with “variant broadcast services” such as teletext. See 53 Rad.Reg.2d (P & F) at 1322. Relying on Commission Policy in Enforcing Section 312(a)(7) of the Communications Act of 1934, 68 F.C.C.2d 1079, 1093 (1983), the FCC suggested that by providing a candidate access to the broad television audience attracted to the station’s regular broadcast operation a licensee satisfied its section 312(a)(7) duties even if the broadcaster at the same time denied access to the more limited audience viewing the “ancillary or subsidiary” teletext service. See 53 Rad.Reg.2d (P & F) at 1322-23.
In contrast, the Commission found section 315 wholly inapposite to teletext. Noting that a broadcast “use” triggered section 315’s substantive obligations, that a “use” required “a personal appearance by a legally qualified candidate by voice or picture,” and that the textual and graphics nature of teletext made it “inherently not a medium by which a candidate [could] make a personal appearance,” the Commission held that teletext could not trigger the requirements of section 315. See 53 Rad. Reg.2d (P & F) at 1323. The Commission also reasoned that teletext differed from “traditional broadcast programming” because it does not have the powerful audiovisual capabilities of main-channel broadcasting, and, therefore, does not pose the danger of “abuse” of these powerful sound and image “uses” that Congress envisioned in enacting section 315. See id.
The Commission reserved its most elaborate analysis for the fairness doctrine. It began with the contention that the fairness doctrine is a Commission-made policy, and that Congress did not codify the fairness doctrine when it added language recognizing that policy in the course of a 1959 amendment to section 315. 53 Rad.Reg.2d (P & F) at 1323. Thus, the 1959 amendment does not compel extension of the fairness doctrine to “new services... which did not even exist” at the time, and applications of the doctrine to serve the public interest rests in the Commission’s “sound judgment and discretion.” See id.
The Commission then determined that it should not apply the fairness doctrine to teletext, “primarily [because of] a recognition that teletext’s unique blending of the print medium with radio technology fundamentally distinguishes it from traditional broadcast programming.” 53 Rad.Reg.2d (P & F) at 1324. Noting that “scarcity” of broadcast frequencies provided the first amendment justification of the fairness doctrine’s application to traditional broadcast media, the Commission posited an “[i]mplicit... assumption that... power to communicate ideas through sound and visual images... is significantly different from traditional avenues of communication because of the immediacy of the medium.” Id. In other words, because scarcity inheres in all provisions of goods and services, including the provision of information through print media, the lessened first amendment protection of broadcast regulation must also rely upon the powerful character of traditional broadcasting. Because teletext “more closely resembles... other print communication media such as newspapers and magazines,” the Commission found the “scarcity” rationale, as reinterpreted, insufficient to justify regulating teletext.
The Commission also reasoned that teletext, as a print medium in an “arena of competition... includpng] all other sources of print material,” would not encounter the same degree of scarcity, in the usual sense, as the sound and visual images of regular programming. See 53 Rad. Reg.2d (P & F) at 1324. Thus, the Commission felt it constitutionally suspect to apply the fairness doctrine to teletext. And, in light of its obligation to “encourage, not frustrate, the[] development” of new services like teletext, the FCC decided, therefore, to heed concerns of commenters that teletext services might not prove “viable if... burdened by Fairness Doctrine obligations” and to exempt teletext from the fairness doctrine. See id.
Two motions for reconsideration of the decision not to apply content regulation to teletext were filed. Media Access Project (“MAP”), a petitioner in this appeal, argued that “[t]eletext... is intended for the general public,” and, therefore, falls within the definition of “broadcasting” in the Communications Act of 1934 and triggers broadcast regulation. See J.A. at 111-12. MAP argued that section 312(a)(7) required a licensee “ ‘to tailor [its] responses [to requests for air time] to accommodate, as much as reasonably possible, a candidate’s stated purposes in seeking air time,' ” an individualized approach inconsistent with the sweeping holding of the Report and Order. See J.A. at 112 (citing Columbia Broadcasting System, Inc. v. FCC, 453 U.S. 367, 387, 101 S.Ct. 2813, 2825, 69 L.Ed.2d 706 (1981)). MAP generally contended that teletext had broad audience potential, a good capacity to convey political information, and that the Commission must ensure access to teletext service. See id. at 113.
With respect to section 315, MAP took issue with the FCC’s view that teletext does not meet the standards for a “use.” First, MAP argued that teletext could “produce graphic images, including... perfectly recognizable portraits of... candidates,” and, therefore, met the Commission’s prior definition of a “use” as “ ‘any broadcast or cablecast of a candidate’s voice or picture.’” See J.A. at 116, 117. But even if teletext had not possessed such visual capabilities, MAP urged that the Commission would have a duty to redefine “use” to account for this new form of broadcasting technology. See J.A. at 117.
As for the fairness doctrine, MAP contended that “[t]he standard of fairness... inheres in the public interest standard” the FCC is charged with enforcing, and that by the 1959 amendments “Congress did not merely ‘ratify’ the Commission’s fairness doctrine... [but] clearly made [it] a binding part of the statute.” J.A. at 118, 119. MAP argued, therefore, that the FCC lacked the discretion to refuse to apply the fairness doctrine to teletext broadcast operations.
The other Petition for Reconsideration, filed by Henry Geller, Donna N. Lampert, and Philip A. Rubin, made many of the same legal arguments put forward by MAP. Their petition added that the characterization of “teletext as ‘ancillary,’ ‘novel,’ or ‘a print medium’ ” could not avoid the requirements of political broadcast regulation, and that the scarcity doctrine had nothing to do with the “immediacy” of traditional broadcasting’s sounds and images. J.A. at 126-27 & n. 6. This petition also urged that the full panoply of political broadcasting regulation be applied to teletext.
On November 8, 1984, the Commission rejected these petitions in a Memorandum Opinion and Order, 101 F.C.C.2d 827 (1985). While the Memorandum Opinion and Order largely rehearsed the points made in the Commission’s earlier decision, the Commission elaborated upon the legal relevance of the differences between teletext and traditional broadcasting:
We consider teletext clearly as an ancillary service not strictly related to the traditional broadcast mode of mass communication. First, the very definition of teletext confined the service to traditional print and textual data transmission. Thus, although these data will be transmitted at some point through the use of the electromagnetic spectrum, its primary and overriding feature will be its historical and cultural connection to the print media, especially books, magazines and newspapers. Users of this medium will not be listening or viewing teletext in any traditional broadcasting sense, but instead will be reading it, and thus be able to skip, scan and select the desired material in ways that are incomparable to anything in the history of broadcasting and broadcast regulation. In this light, we believe that the content regulations created for traditional broadcast operations are simply out of place in this new print-related textual data transmission medium. We decline to attribute to Congress an intent to extend broadcast content regulation... to this new medium.
Id. at 833 (citations and footnote omitted; emphasis in original).
The Commission also provided further explanation of its first amendment theory and made clear that it meant this theory to cover the applicability of all forms of political broadcasting regulation to teletext. Relying upon Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (striking down a state’s newspaper right-of-reply statute as running afoul of the first amendment’s protection of editorial judgment and control), and asserting that it considered teletext a “print medium” for first amendment purposes, see 101 F.C.C.2d at 834 & n. 16, the Commission found that “neither the letter nor the purposes of the First Amendment would be served by... a ruling” that would “require[] [the Commission] to intrude into the editorial judgments of teletext editors.” 71c?. at 834. Given Tomillo’s clear refusal to allow interference with editorial judgments in the print media and “the historical sensitivity of Congress to these [first amendment] issues,” the Commission would not “construe the intent of Congress to apply Section 315 and similar statutory provisions, and... associated rules and policies, to the teletext medium.” Id. (footnote omitted). Accordingly, the Commission adhered to the results of its earlier Report and Order.
On June 3, 1985, the Telecommunications Research and Action Center and the Media Access Project (“TRAC/MAP”) filed a petition for review in this court, largely renewing the substantive legal arguments asserted in the petitions for reconsideration below. Because the Commission’s interpretation of the first amendment affects its analysis of political broadcasting regulation and teletext at several points, we discuss that interpretation first. We then address the petitioners’ contentions with respect to section 312(a)(7), section 315, and the fairness doctrine in that order.
II.
In the Commission’s view the regulation of teletext’s “unique blend of the print medium with radio technology” raises first amendment problems not associated with the regulation of traditional broadcasting. Thus, the argument goes, existing Supreme Court precedent upholding political content regulation of traditional broadcasting does not necessarily justify the application of such regulation to the new medium of teletext. While not concluding that this application to a “print medium” like teletext would violate the first amendment, the Commission suggested that its application of that regulation would be sufficiently suspect to justify not imputing to Congress an intent to apply “section 315 and similar statutory provisions, and... associated rules and policies, to the teletext medium.” 101 F.C.C.2d at 834. To appreciate the Commission’s argument, a brief discussion of the case law will be useful.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Supreme Court rejected a first amendment challenge to the fairness doctrine and related rules governing personal attacks and political editorials by licensees. In reasoning that applies generally to political broadcasting regulation, the Court found justification for limiting first amendment protection of broadcasting in the “scarcity doctrine.” Given the fact of a limited number of broadcast frequencies and the “massive” problem of broadcast interference, the Court remarked that “only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology.” Id. at 388, 89 S.Ct. at 1805. The Court observed that this necessitated the division of the radio spectrum into usable portions, the assignment of subdivisions of the frequency to individual users, and regulation under which the “Government... tell[s] some applicants that they [cannot]... broadcast at all because there [is] room for only a few.” Id. Therefore, the Court asserted, because “there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish.” Id.
Observing that licensees and those who can obtain no license have identical first amendment rights, the Court in Red Lion further concluded that
[t]here is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
395 U.S. at 389, 89 S.Ct. at 1806. The Court then enunciated the classic formulation of the scarcity doctrine:
Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.
Id. at 390, 89 S.Ct. at 1806. It was on this principle that the Court found no first amendment infirmity in political broadcast regulation.
The Commission believes, however, that the regulation of teletext falls not within the permissive approach of Red Lion, but rather within the strict first amendment rule applied to content regulation of the print media. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), the Court struck down an editorial right-of-reply statute that applied to newspapers. The content regulation in Tomillo bore a strong resemblance to that upheld in Red Lion. In Tomillo the Court held that such regulation impermissibly interfered with the newspapers’ “editorial control and judgment.” Id. at 258, 94 S.Ct. at 2840. The Court made the broad assertion that “[i]t has yet to be demonstrated how governmental regulation of this crucial [editorial] process can be exercised consistent with the First Amendment guarantees of a free press.” Id. If the Commission’s view is correct, and Tomillo rather than Red Lion applies to teletext, that service is entitled to greater first amendment protections than ordinary broadcasting and it would be proper, at a minimum, to construe political broadcasting provisions narrowly to avoid constitutionally suspect results.
The Commission has offered two grounds for its view that Tomillo rather than Red Lion is pertinent. Both reasons relate to the textual nature of teletext service. First, the Commission read an “immediacy” component into the scarcity doctrine:
Implicit in the “scarcity” rationale... is an assumption that broadcasters, through their access to the radio spectrum, possess a power to communicate ideas through sound and visual images in a manner that is significantly different from traditional avenues of communication because of the immediacy of the medium.
53 Rad.Reg.2d (P & F) at 1324. Second, the Commission held that the print nature of teletext “more closely resembles, and will largely compete with, other print communication media such as newspapers and magazines.” Id. Under this analysis, scarcity of alternative first amendment resources does not exist with respect to teletext. We address these points in turn.
With respect to the first argument, the deficiencies of the scarcity rationale as a basis for depriving broadcasting of full first amendment protection, have led some to think that it is the immediacy and the power of broadcasting that causes its differential treatment. Whether or not that is true, we are unwilling to endorse an argument that makes the very effectiveness of speech the justification for according it less first amendment protection. More important, the Supreme Court’s articulation of the scarcity doctrine contains no hint of any immediacy rationale. The Court based its reasoning entirely on the physical scarcity of broadcasting frequencies, which, it thought, permitted attaching fiduciary duties to the receipt of a license to use a frequency. This “immediacy” distinction cannot, therefore, be employed to affect the ability of the Commission to regulate public affairs broadcasting on teletext to ensure “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.” Red Lion, 395 U.S. at 390, 89 S.Ct. at 1807.
The Commission’s second distinction— that a textual medium is not scarce insofar as it competes with other “print media”— also fails to dislodge the hold of Red Lion. The dispositive fact is that teletext is transmitted over broadcast frequencies that the Supreme Court has ruled scarce and this makes teletext’s content regulable. We can understand, however, why the Commission thought it could reason in this fashion. The basic difficulty in this entire area is that the line drawn between the print media and the broadcast media, resting as it does on the physical scarcity of the latter, is a distinction without a difference. Employing the scarcity concept as an analytic tool, particularly with respect to new and unforeseen technologies, inevitably leads to strained reasoning and artificial results.
It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media. All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wishes to publish a newspaper, or even a pamphlet, may do so. Since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.
Neither is content regulation explained by the fact that broadcasters face the problem of interference, so that the government must define useable frequencies and protect those frequencies from encroachment. This governmental definition of frequencies is another instance of a universal fact that does not offer an explanatory principle for differing treatment. A publisher can deliver his newspapers only because government provides streets and regulates traffic on the streets by allocating rights of way. Yet no one would contend that the necessity for these governmental functions, which are certainly analogous to the government’s function in allocating broadcast frequencies, could justify regulation of the content of a newspaper to ensure that it serves the needs of the citizens.
There may be ways to reconcile Red Lion and Tomillo but the “scarcity” of broadcast frequencies does not appear capable of doing so. Perhaps the Supreme Court will one day revisit this area of the law and either eliminate the distinction between print and broadcast media, surely by pronouncing Tomillo applicable to both, or announce a constitutional distinction that is more usable than the present one. In the meantime, neither we nor the Commission are free to seek new rationales to remedy the inadequacy of the doctrine in this area. The attempt to do that has led the Commission to find “implicit” considerations in the law that are not really there. The Supreme Court has drawn a first amendment distinction between broadcast and print media on a premise of the physical scarcity of broadcast frequencies. Teletext, whatever its similarities to print media, uses broadcast frequencies, and that, given Red Lion, would seem to be that.
The Commission, therefore, cannot on first amendment grounds refuse to apply to teletext such regulation as is constitutionally permissible when applied to other, more traditional, broadcast media. We now turn to the consideration of the particular regulation at issue in this case.
III.
Section 312(a)(7) states that “[t]he Commission may revoke any station license or construction permit... for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.” 47 U.S.C. § 312(a)(7) (1982). The question here is the rationality of the Commission’s decision about the applicability of this provision to teletext.
At the outset, we state what we understand the Commission’s decision to be. In introducing its legal analysis, the Commission stated: “As discussed below, we have concluded that, as a matter of law,... sections [312(a)(7) and 315] need not be applied to teletext service.” 53 Rad.Reg.2d (P & F) at 1322. The Commission stated that “the statutory requirement of affording reasonable access is adequately satisfied by permitting federal candidates access to a licensee’s regular broadcast operation; it does not require access to ancillary or subsidiary service offerings like teletext.” Id. The Report and Order’s analysis of section 312(a)(7) concluded by stating that the Commission “perceive[d] no legal requirement that licensees grant federal candidates access to their teletext offerings.” Id. at 1323. Finally, in rejecting reconsideration of this issue in its Memorandum Opinion and Order, the FCC asserted: “Guided as we are in such matters by a reasonableness standard, we find that a broadcaster could satisfy the ‘reasonable access’ rights of a candidate without use of teletext.” 101 F.C.C.2d at 834. We find it clear, therefore, that the Commission believes that a broadcaster cannot be deemed to have acted unreasonably under the statute on the ground that he or she adopts a policy refusing to permit any access to teletext. We now turn to our analysis of the Commission’s conclusion on this point.
The scope of review in this case is quite narrow. In Columbia Broadcasting System, Inc. v. FCC, 453 U.S. 367, 386, 101 S.Ct. 2813, 2825, 69 L.Ed.2d 706 (1981) (“CBS”), the Supreme Court stated that, in enacting section 312(a)(7), Congress “[e]ssentially... adopted a ‘rule of reason’ and charged the Commission with its enforcement.” The Court also asserted that Congress “did not give guidance on how the Commission should implement the statute’s access requirement.” Id. In such a case, where Congress has left a gap in the statutory scheme, “there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782-83, 81 L.Ed. 694 (1984) (footnote omitted). In the determination of whether the agency’s decision has run afoul of these standards, the parties challenging the agency action bear the burden of proof. See San Luis Obispo Mothers for Peace v. United States Nuclear Regulatory Commission, 789 F.2d 26, 37 (D.C.Cir.1986) (en banc). Thus, we approach the question of the agency’s construction of section 312(a)(7) with significant “judicial deference,” CBS, 453 U.S. at 390, 101 S.Ct. at 2827, and we must uphold that construction if it is a “reasonable” one. Chevron, 467 U.S. at 844, 104 S.Ct. 2783. We now examine whether the “Commission’s action represents a reasoned attempt to effectuate the statute’s access requirement.” CBS, 453 U.S. at 390, 101 S.Ct. at 2827.
Petitioners argue that section 312(a)(7), as interpreted by the Commission and the Supreme Court, “prohibit[s]... blanket bans on candidate advertising and require[s] broadcasters to accommodate the reasonable needs of candidates.” Brief for TRAC/MAP at 49. These standards, they contend, foreclose the Commission’s adopting a general rule allowing a broadcaster to bar candidates from access to teletext without running afoul of section 312(a)(7). If we agree with petitioners that the Commission’s decision in the teletext docket was inconsistent with the approach previously adopted by the Commission and approved by the Supreme Court, we must reverse and remand unless the agency has supplied “a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971).
Petitioners rely heavily upon CBS. The Supreme Court in CBS reviewed the FCC’s construction of section 312(a)(7) in connection with a determination that the television networks had failed to give President Carter reasonable access in order to announce his bid for reelection. In upholding the Commission’s finding of a violation, the Court also upheld the individualized, case-by-case approach that the Commission had adopted in enforcing section 312(a)(7), see, e.g., Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079 (1978) ("1978 Policy Statement”). The Court described the Commission’s policy as follows:
[Section 312(a)(7) ] requests must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably possible, a candidate’s stated purposes in seeking air time.... If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission’s analysis would have differed in the first instance. But if broadcasters adopt “across-the-board policies” and do not attempt to respond to the individualized situation of a particular candidate, the Commission is not compelled to sustain their denial of access.
CBS, 453 U.S. at 387-88,101 S.Ct. at 2825-26 (citations omitted). The Court approved the rationality of the Commission’s standards proscribing the use of “blanket rules” to govern access and requiring that “each request... be examined on its own merits.” See id. at 389, 101 S.Ct. at 2826. Acknowledging that “the adoption of uniform policies might well prove more convenient for broadcasters,” the Court nonetheless accepted the Commission’s view that “such an approach would allow personal campaign strategies and exigencies of the political process to be ignored.” Id. Because “§ 312(a)(7) assures a right of reasonable access to individual candidates for federal elective office, and the Commission’s requirement that their requests be considered on an individualized basis is consistent with that guarantee,” the Court upheld the Commission’s approach. Id. (emphasis in original).
Contrary to petitioners’ assertions, there is, we believe, no conflict between the Commission’s section 312(a)(7) policy, as approved by the Supreme Court in CBS, and the decision made in the teletext docket. When the Supreme Court approved the Commission’s policy of proscribing “blanket rules” or “uniform policies” concerning access, this meant only that broadcasters could not adopt policies that would effectively nullify the statute’s rule of reason approach to granting access to federal candidates. This does not, and could not, suggest, however, that no rules may be applied in the determination of what access is reasonable under the statute. Reasonableness does not mean that an impressionistic judgment must be made in every case. It would be impossible to follow a consistent policy with respect to reasonableness without framing some rules to guide the decisions in particular cases. A rule of reason, as the course of antitrust law shows, implies a middle range of cases which require the individualized judgment and a nice balancing of competing factors. Within a rule of reason, however, there are also cases at the extremities of the spectrum where reasonableness or unreasonableness is clear. Thus, there are areas of per se legality and illegality within any rule of reason. In the context of section 312(a)(7), Congress has empowered the Commission to establish rules and regulations to guide broadcasters in their determination of what access is reasonable, see CBS, 453 U.S. at 386, 101 S.Ct. at 2825 (citing 47 U.S.C. § 303(r)), and, while the Commission has principally developed standards on a case-by-case basis, it has also identified some of the extreme cases in which the reasonableness or unreasonableness of a practice is clear.
The Court in fact approved the use of per se rules by assenting to the Commission’s policy limiting the applicability of section 312(a)(7) to the period after a campaign commences, a limitation nowhere found in the statute. In this respect, the Court explained: “By confining the applicability of the statute to the period after the campaign begins, the
Question: This question concerns the second 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_applfrom
|
E
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
FITZGERALD v. McFADDEN et al.
No. 269.
Circuit Court of Appeals, Second Circuit.
March 15, 1937.
Edwin V. Hellawell, of New York City, for appellant.
O’Connor & Farber, of New York City (W. Lee Helms and Arnold T. Koch, both of New York City, of counsel), for appellees.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal from a decree in equity, dismissing a bill between- co-adventurers. The facts are as follows: The defendant, McFadden, in the summer of 1931, by his solicitor, the defendant, Helms, filed an application for a patent on a process for cleaning ships’ oil tanks. The plaintiff, Fitzgerald, who had lived in Georgia, and had been engaged all his life in shipping, met McFadden and Helms on November 18th, 1931, and they interested him in a project to exploit this invention. The three had a number of interviews and came to an agreement, on December 14, 1931, by which Fitzgerald, on behalf of himself and one, Meseck, was to pay $5,-000 to McFadden for an interest in the invention; Fitzgerald was to advance $3,000 to a corporation, the Sealand Process Company, which was to be organized to exploit the patent in the Port of New York; Fitzgerald and McFadden were to contribute between $3,000 and $5,000 toward the expenses of a second company to be organized, to which the patent was to be assigned; and Meseck was to turn over a tug for the use of the Sealand Company. Of the $5,000 later paid to McFadden, $2,-500 came from Meseck; but Meseck’s tug was apparently thought the equivalent of Fitzgerald’s financing of the Sealand Company. In consideration of these promises McFadden and Helms agreed to license the Sealand Company for the Port of New York, and to give Fitzgerald and Meseck jointly thirty-one per cent, of its shares; McFadden was to have fifty-one per cent, and the other eighteen per cent, was to be distributed between Helms and two others. The shares of the holding company when formed were to be divided in the same proportions. Fitzgerald paid $1,000 to McFadden on December fourteenth and the rest of the $5,000 later; just when, the record does not show. The Sealand Process Company was formed in December, and Fitzgerald advanced between $2,-700 and $2,800 to finance it. Again the dates are left uncertain.
Fitzgerald swore that at their first meeting he inquired of Helms whether McFadden’s invention was patentable, and that Helms answered: “I have made thorough'searches of the records in Washington, both foreign and American, and it is new and novel and there has never been anything like it.” However, Fitzgerald appears not to have relied upon this, for he insisted upon a patent lawyer of his own, and on Helms’s recommendation he retained one, Hutchinson, a Washington correspondent of Cooper, Kerr & Dunham, a well known New York firm. He went to Washington with Helms on December sixteenth, but he did not personally see Hutchinson; Helms did, and asked him to complete a search in two days. Hutchinson did what he could, and Cooper, Kerr & Dunham reported the result to Helms on December twenty-fourth, saying that they had not been able to give the necessary time to determine whether the invention was patentable, but that it did not infringe any of ten patents which they enumerated. On November 17, 1931, three months after McFadden had filed his application, a patent issued on an earlier application to an Englishman named Freeman, for a process of “degreasing the interior” of ships’ condensers and the like. On or about January 1, 1932, Helms learned of this, and at once perceived its importance, for he began to bargain for it with the American owners, and on January nineteenth he offered twenty-five hundred dollars for it; and McFadden bought it for himself in May and has held it ever since as his personal property. On February twenty-fourth the patent examiner cited it against McFaddcn’s application; that reference has never been overcome, and up to the time of the trial McFadden had received no patent. '
The parties began to draw apart in the spring of 1932, and had come to a breach by the summer; it is probable that Fitzgerald was already contemplating taking out a patent of his own, which he too meant to keep for himself; but there is no evidence that he knew of the Freeman patent. On the fifteenth of July, 1932, he and Meseck, McFadden, Helms and the two other parties to the project, all entered into an agreement by which they released one another from all obligations; and under which Meseck and Fitzgerald gave back their shares in the Sea-land Company; Meseck received back his tug; and Fitzgerald got a license under the McFadden patent, when issued, for the states of Pennsylvania, Delaware and Maryland. Four days later Fitzgerald learned of the Freeman patent, and, on the second of August, that McFadden had bought it. He says that during the same month he tendered back the license to Helms and demanded his money, but this Helms denied, and the judge made no finding as to where the truth lay between them. On the twenty-second of March, 1933, he filed the bill at bar, seeking (1.) to charge McFadden with a constructive trust of the Freeman patent; (2.), to recover any surplus of what he had paid him that had not gone into it; and (3.) all advances that he had made to finance the Sea-land Process Company. The defendants pleaded the release of July 15, 1932, as a bar, and Fitzgerald replied that it had been procured by fraud.
While the suit was pending the Navy Department had become interested in the exploitation of the invention for its vessels, and opened negotiations with both parties ; with McFadden, as owner of the Freeman patent-and of his own application, and with Fitzgerald as licensee of McFadden in three states, and as patentee of his own patent which had meanwhile issued. The Department secured licenses from both, and paid down $15,000, of which Fitzgerald got a third. Eighteen months before this contract was made, but apparently while the negotiations were pending, they agreed that any arrangement with the Navy Department should be “without prejudice to any and all rights and contentions in any present litigation * * * respecting said patents and applications * * * and further without prejudice to * * * all claims of the respective parties hereto except as to the rights and obligations created by this instrument.”
So much of the bill as seeks to impress a constructive trust upon the Freeman patent on the theory that McFadden had bought it with Fitzgerald’s money, must fall because the judge found that all the money which McFadden used, came from elsewhere. McFadden swore in detail as to how he got it, and the judge, who saw him, believed what he said; his judgment on such an issue was better than ours can be. Upon this appeal Fitzgerald also insists that, no matter whose money purchased the Freeman patent, McFadden and Helms, as co-adventurers in the enterprise, might not buy it in for themselves and hold it as their own. Assuming this to be true, it will not serve Fitzgerald in this suit, because the limit of any relief which those facts would justify, is that McFadden should transfer the patent to the proposed holding company, and give the Sealand Process Company a license under it. Fitzgerald does not want that; he does not suggest that he again become a shareholder of the Sealand Company, or that McFadden proceed to organize the holding company; rather, the very demand for a transfer of the Freeman patent presupposed that he disaffirmed the contract, that the consideration should be restored and that he could trace it into another form. The remainder of the bill is to recover the payments to McFadden which did not go into the Freeman patent; as well as the payments to finance the Sealand Company. As to the first, like the demand for the Freeman patent, it presupposed a disaffirmance of the original contract without which the consideration could not be recovered. The allegations support sucl\ a cause of suit; they are that McFadden and Helms deceived Fitzgerald about the validity of McFadden’s_ invention. The evidence does not, however, prove that when the contract was closed on December 14, 1931, Helms knew of the Freeman patent; he may not have, for it had issued less than a month before. We cannot say, therefore, that there was any fraud in the inception of the contract. Moreover, if it had been once definitely closed, and if there be no implied representation in selling a patent application that a patent will issue, Fitzgerald could not have disaffirmed, merely because Helms learned of the Freeman patent thereafter. The law is indeed settled that if one buys an issued patent and it turns out later to be invalid, the buyer may disaffirm. Darst v. Brockway, 11 Ohio, 462; Herzog v. Heyman, 151 N.Y. 587, 45 N.E. 1127, 56 Am.St.Rep. 646; Harlow v. Putnam, 124 Mass. 553; Keith v. Hobbs, 69 Mo. 84. But it does not follow that the same doctrine applies to a patent application, which is necessarily a gamble anyway. However, we need not decide that here, because of the particular circumstances. We have already quoted what Fitzgerald said that Helms told him about McFadden’s invention. Helms disputed this in part, and though Meseck corroborated Fitzgerald, we will arguendo accept Helms’s version; at least he had told Fitzgerald that he had made a search and had found nothing. That gave Fitzgerald an assurance that, so far as Helms knew, the invention was valid.
But, as we have said, Fitzgerald did not rely upon this; he retained Hutchinson to search and report to him. Although that was after the contract was closed and after he had paid down $1,000, it is obvious that he could only have meant that, in case the report turned out bad, he should have the power to withdraw. No other reasonable interpretation of it is possible. Nevertheless had Fitzgerald made his decision-after consulting his own lawyer, that would have ended it. He did not; it was Helms who got Hutchinson’s report from Cooper, Kerr & Dunham. He got it about December twenty-fourth and kept it till January 21, 1932, three weeks after he had learned of the Freeman patent. Now it is true that the report refused to pass upon the validity of McFadden’s invention because of too little time; but for that very reason Helms must have understood that if Fitzgerald continued in the project, he was relying in some measure upon what Helms had told him, when he said that he had searched and found nothing. Fitzgerald had consulted him and certainly expected some expert advice. When he sent on the report, knowing of the Freeman patent, it was a deceit unless that patent did not impair or substantially affect McFadden’s invention. Further, the report said that McFadden’s disclosure did not infringe any of the ten patents mentioned. If it infringed Freeman’s claims, it was an even plainer fraud to suppress its discovery. Embarrassed for these reasons, Helms and McFadden tried upon the trial to belittle the Freeman patent and say that McFadden’s process did not infringe it. That was altogether contradictory to Helms’s letter to Hutchinson, complaining that Hutchinson had not discovered it; Helms then thought it “exceedingly pertinent” to McFadden’s application and that opinion is confirmed by its repeated citation against the application. But quite aside from these evidences of its importance, a comparison leaves no doubt of its critical character. Taken as disclosure it anticipated every one of McFadden’s claims on file during the first six months of 1932, provided it covered “oil tanks” and the use of tetrachloride. It did both. It was said to cover “condensers and other structures which are not easily accessible”; and indeed that clause was not necessary anyway, because McFadden’s claims would at best have been only for a new use. It used trichlorethylene, but McFadden expressly made that an equivalent of tetrachloride. Limited claims might conceivably have been drawn which would escape; perhaps they still can be; but as the application stood, it was void; and at best any possible value which it could have, was very circumscribed. Furthermore, it is very doubtful whether one could practise McFadden’s process at all without infringing Freeman’s claims. “Heat exchange apparatus” was defined at page 2, lines 38-44, as covering any surfaces “difficult of access”; the inside of oil tanks were such surfaces. Certainly infringement was very likely, and every consideration of honesty demanded that Fitzgerald should be allowed to judge for himself. Therefore, Helms and McFadden — who was chargeable with Helms’s fraud — deceived Fitzgerald while he still could withdraw, and their fraud extended his privilege until he should learn of the Freeman patent. He may recover what he paid unless there be some bar to the suit.
The first defence is the release of July 15, 1932. The fraud invalidated this as well as the contract, unless Fitzgerald had learned of the Freeman patent meanwhile. There is no direct evidence that he had, and the defendants have the affirmative. True, the judge made no finding on the issue, and there is some ground to suspect that the patent may have earlier come to Fitzgerald’s attention. He was .already trying to secure a patent of his own, and had retained a solicitor to make some sort of search, and, as we have said, four days after the release this attorney did report the patent to him- Yet this does not seem to us enough to carry the defendants’ burden and the right to dis-affirm the release like 'that to disaffirm the contract still persisted. The judge thought, however, that Fitzgerald’s delay after learning of the Freeman patent barred disaffirmance. We cannot agree; not even though he did nothing until March, 1933, •when the bill was filed. The defendants had not acted to their detriment in reliance upon his inaction, and seven months is too short a time to infer actual ratification in the absence of some affirmative act. Indeed, Fitzgerald swore that he demanded his money back in August, but Helms denied it, and since the judge would make no finding, we will assume that no demand was made. There is a passage in his testimony which may be read as saying that at one time in some negotiations with the Dupont Company about his own patent he had offered them his license under the McFadden patent; but it is very confusing, not plain enough to prove that he did offer that license. All he meant to say, apparently, was that the Dupont Company had told him that the Freeman patent underlay all the rest. Nothing but such an offer would be a ratification; he needed no license to practise the. invention before a patent issued, if he knew it. The record does not disclose whether the process was ever disclosed to him; originally it was a secret, but after the contract was closed he may have learned it. If he did, he did not learn it as a result of the release; if he did not, it does not appear that it was disclosed to him as part of the consideration for the release; if it was so disclosed, it does not appear that he ever practised it. We can therefore find no evidence of ratification after discovery of the fraud except the delay; and the defendants had the burden of the issue. There is another passage in his testimony which seems to say that he had been offered back his money, but a reading of the whole makes it plain that he did not mean this; and the defendants apparently understood that he did not.
The judge also sustained the defence that Fitzgerald never tendered back his license or Meseck’s tug and that for this reason too he could not disaffirm the release. First, it is to be observed that his tender, even if any were necessary before suit, which it was not would not have included the tug. We have already said that Fitzgerald wants only to disaffirm the contract not to have it reinstated, and the conditions upon one are not the same as upon the other. We can consider the question most clearly by supposing that the two disaffirmances took place in sequence; if the defendants are restored to whatever they should have at the end of both, there is no reason to go through the intermediate steps- To disaffirm the release and get the contract reinstated, Fitzgerald would have to cancel his personal license and Meseck to return his tug; but that was all that both received. Thereupon they would have become entitled to thirty-one per cent, of the Sealand shares and their former status as co-adventurers in the project, being still liable, however, to finance the holding company when formed. If in that posture they had sought to disaffirm the contract they would have had to surrender the Sealand shares; would have become jointly entitled to $5,000; Meseck would have got back his tug; and Fitzgerald his advances to the Sealand Company. Thus at the end of both disaffirmances they would have been exactly where they will be now, if their money is refunded; and McFadden and Helms would have nothing they do not now have, except Fitzgerald’s personal license. The restoration of that and that alone is the only condition; and it was not necessary to tender that in advance of filing the bill, for the decree can take care of it. MacNamee v. Bankers’ Union, etc., 25 F.(2d) 614, 618 (C.C.A.2); Twin Lakes L. & W. Co. v. Dohner, 242 F. 399, 402 (C.C.A.6); Plews v. Burrage, 274 F. 881, 885 (C.C.A.1); Thomas v. Beals, 154 Mass. 51, 27 N.E. 1004; O’Neill v. Kunkle, 244 Mich. 653, 222 N.W. 110.
From the foregoing it also appears that Meseck is not a necessary party to this suit. Fitzgerald does not ask for more than his half of the money paid to McFadden; McFadden can demand nothing from Meseck or Fitzgerald which the decree will not assure him. Meseck cannot himself sue and so subject McFadden and Helms to a second suit because he has waited for four years and a half with notice of the deceit and has not moved; he was a witness on the trial and was chargeable with notice of what came out there. Finally, the contract with the Navy was not a ratification of the release because the parties had expressly provided that it should not be. There was nothing unlawful in their doing so, or any reason why they should not stipulate that the status quo should remain as between themselves. Fitzgerald’s receipt of his share of the payment could not have been an “affirmation” of the release in the face of such an agreement. Thus there is no obstacle to the recovery by Fitzgerald from" McFadden of $2,500 with interest from the dates of payment.
As to Fitzgerald’s payments to finance the Sealand Company somewhat different considerations apply. A decree against that company would, to be sure, be part of the restitution, since it was privy to, and chargeable with, Helms’s deceit. But such a decree would probably be without value, and the question is whether any decree should go against Helms and McFadden, as Helms’s principal. That must depend upon whether they are liable in delicto for Fitzgerald’s loss — not in restitution, but in damages. Any money advanced after Helms delivered Hutchinson’s report to Fitzgerald was a consequence of that deceit; for while it does not expressly appear that Fitzgerald would not have gone on, had he known of the Freeman patent, such an inference from the whole situation is altogether safe. More than that, Helms is liable for all payments between January first, when he knew of the Freeman patent, and January 21, 1932, because during that period he allowed Fitzgerald to act upon his original statement that his search had proved negative, a statement which he then knew to be false, and on the faith of which Fitzgerald was financing the Sealand Company. Loewer v. Harris, 57 F. 368 (C.C.A.2); Monier v. Guaranty Trust Co., 82 F.(2d) 252, 254, 104 A.L.R. 912 (C.C.A.2) (semble). Gerdes v. Lustgarten, 266 U.S. 321, 45 S.Ct. 107, 69 L.Ed. 309, is very similar. There is no objection to thus combining a recovery upon a legal cause of action with a cause of suit for restitution; equity will close up the whole matter at one time. However, as this part of the recovery will be for damages, theoretically it must be limited to the difference between Fitzgerald’s payments to the Sealand Company and any benefit which these added to his shares. Since the McFadden patent has never issued, it is not likely that this has any practical importance; but if the parties cannot agree, it must be settled in the district court.
The reasoning by which Helms is liable for the Sealand payments also applies to make him liable for any payment made to McFadden ■ after January 1, 1932. He then knew that Fitzgerald was relying upon his word and that it had become false; he is liable for any resulting loss- Again the measure of that loss is the difference between 'the payments and the value of the interest which they purchased.
Decree reversed; case remanded with instructions to proceed in accordance with the foregoing.
Question: 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_respond2_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 second 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").
Mary W. ROYALL, Appellant, v. Louis YUDELEVIT and William H. Simons, Appellees.
No. 14608.
United States Court of Appeals District of Columbia Circuit.
Argued March 20, 1959.
Decided June 4, 1959.
Mr. Arthur L. Willcher, Washington, D. C., for appellant.
Mr. Morton Willcher, Washington, D. C. , also entered an appearance for appellant.
Mr. Ernest M. Shalowitz, Washington, D. C., with whom Mr. Sol M. Alpher, Washington, D. C., was on the brief, for appellee Yudelevit.
Mr. Louis E. Spiegler, Washington, D. C. , also entered an appearance for appel-lee Yudelevit.
Mr. Maurice Friedman, Washington, D. C., for appellee Simons.
Before Mr. Justice Burton, retired, and Prettyman, Chief Judge, and Wilbur K. Miller; Circuit Judge.
Sitting by designation . pursuant to Sec. 294(a), Title 28, U.S.Code.
WILBUR K. MILLER, Circuit Judge.
Mrs. Mary W. Royall brought this suit against Louis Yudelevit and William H. Simons to recover damages for wrongful foreclosure. The evidence at the trial tended to show that for many years Mrs. Royall had owned valuable real estate at 18th and Que Streets in the District of Columbia. In 1955, when the property was subject to a first trust of approximately $100,000, she was elderly and, due to illness and the recent death of her husband, mentally incompetent to realize the value of her property or to understand financial transactions. Being in need of funds, she employed an attorney to obtain an additional loan on her realty. He discussed the matter with Yudelevit, who said he would pay $8,500 for a 90-day note for $10,000 secured by a second deed of trust on the real property. The attorney then had Mrs. Royall execute a note for $10,000 and a second deed of trust securing its payment to one William Bogen, a straw party. Bogen endorsed the note and deed of trust to Yudelevit who delivered the agreed sum of $8,500. Of this amount Mrs. Royall had to pay $50 to Bogen for his services and $700 to her attorney for arranging the loan. From this evidence the jury would have been justified in inferring that Yudelevit was the real lender.
Yudelevit immediately sold the note to William H. Simons for $9,000. Upon default at maturity, Simons caused the trustees under the second deed of trust to sell the realty at public auction. The sale produced only about enough to pay the first and second trusts, so the result was that Mrs. Royall’s alleged equity of from $90,000 to $100,000 was eliminated.
Mrs. Royall alleged that Yudelevit and Simons were both engaged in lending money at usurious rates without having obtained a license to do so under § 26-601, D.C.Code (1951). Her theory was that, because Yudelevit and Simons were unlicensed when the former made the loan, the note and the deed of trust securing it were unlawful and void; that therefore the foreclosure was illegal, and that she suffered damages as a result thereof.
Yudelevit and Simons claimed to be innocent purchasers of the note for value before maturity, without notice of any infirmity in it or defense to it. They also alleged that when Weitzman, a purchaser after the foreclosure sale, resold the property, Mrs. Royall joined in the conveyance and received a part of the sale price; this, they said, estopped her to assert a claim against them.
The trial judge limited Mrs. Royall’s evidence to prima facie proof of a usurious transaction and thus would not permit her to show the appellees should have been but were not licensed under the statute. He said the question of damages would be taken up later if necessary. At the conclusion of her evidence the judge held in effect that a borrower who has paid usury may not recover from the lender the damages he claims to have sustained from the transaction, even though the loan contract was unlawful and unenforceable because the lender was subject to § 26-601 and had not obtained a license thereunder. He held that the illegality of the contract may be used by the borrower as a shield against its enforcement but not as a sword to recover damages against the lender.
Being of the view therefore that, even if a usurious loan contract were established by the evidence and even if Yudelevit and Simons were shown to have been violating the statute and interposed no defense to the action, Mrs. Royall could not recover damages alleged to have been caused by the foreclosure, the trial judge directed a verdict in favor of Yudelevit and Simons. Mrs. Royall appeals.
The first question is whether Mrs. Royall should have been permitted to introduce evidence to show that the appellees were doing business in violation of the statute, which is colloquially known as the Loan Shark Law of the District of Columbia, § 26-601, and which makes it “unlawful and illegal to engage in the District of Columbia in the business of loaning money upon which a rate of interest greater than six per centum per annum is charged on any security of any kind, direct or collateral, tangible or intangible, without procuring license * *
In Hartman v. Lubar, 1942, 77 U.S.App.D.C. 95, 133 F.2d 44, 45, Hartman and another borrowed approximately $900 from Orleans and gave in return a promissory note for $1,000 secured by a chattel deed of trust. Orleans endorsed the note to the District Finance Corporation. Thereafter Lubar, as trustee under the deed of trust, sued in replevin to recover the pledged chattels. During the trial Hartman offered to prove that Orleans was the principal stockholder and president of the District Finance Corporation, and that the loan was actually made by the corporation, which was engaging in the business of lending money in the District of Columbia at an interest rate greater than six per cent without having procured the license required by the statute. The trial court excluded the offered evidence and directed a verdict for the defendants.
In the course of our opinion reversing this action, we said:
“ * * * The general rule is that an illegal contract, made in violation of a statutory prohibition designed for police or regulatory purposes, is void and confers no right upon the wrongdoer. The present case comes under no exception to the general rule. Every consideration of public policy suggests that a contract made in violation of the Loan Shark Law should be unenforceable.”
Later in the Hartman opinion we said: “The evidence offered was competent, therefore, to show the illegality of the transaction and the resulting absence of title in the trustee, upon which appellee based his right to possession.” (Emphasis supplied.)
Thus we held that a usurious loan contract with a lender who is violating the statute is illegal and void and that proof of such violation should have been received; and that a deed of trust which is a product of such a void contract confers no title upon the trustees designated therein. We adhere to the views expressed in Hartman v. Lubar and hold that a borrower, who enters into a usurious contract which is void because the lender was violating the statute, may recover from the lender any damages sustained by reason of the void contract. A lender in a loan contract which is merely usurious may not be liable in damages. But if there is added to the situation the fact that the lender was not licensed as required by law, the loan contract is unlawful and void, and a foreclosure thereunder is wrongful and gives rise to an action for damages suffered therefrom.
Being a borrower, Mrs. Royall was a member of the class for whose protection the statute was enacted. She was therefore not in pari delicto with Yudelevit and her participation with him in its making did not bar her from asserting its illegality. Thomas v. City of Richmond, 1870, 12 Wall. 349, 355, 79 U.S. 349, 355, 20 L.Ed. 453; City of Parkersburg v. Brown, 1882, 106 U.S. 487, 503, 1 S.Ct. 442, 27 L.Ed. 238; Ring v. Spina, 2 Cir., 1945, 148 F.2d 647, 652-653, 160 A.L.R. 371.
It follows that, if the transaction was a usurious loan by Yudelevit and if he was violating the statute by failing to obtain a license, the note and the second deed of trust were void; and, having made the foreclosure possible by transferring the void note and deed of trust, he is liable for the damages resulting from Simons’ foreclosure (even if the latter was innocent throughout) unless he can establish an adequate affirmative defense.
If Simons took the note and deed of trust with notice or knowledge that Yudelevit had obtained them through a usurious loan contract made when he was violating the statute, then Simons unlawfully caused the foreclosure and is liable for any damages caused thereby, unless he can establish an adequate affirmative defense. As to Simons, the question is, not whether he was unlicensed, but whether he was a holder in due course.
Mrs. Royall had the right to elect whether to go into equity and ask that the sale be set aside, or to let the sale stand and ask for damages. Rogers v. Barnes, 1897, 169 Mass. 179, 47 N.E. 602, 38 L.R.A. 145; Missouri Real Estate Syndicate v. Sims, 1904, 179 Mo. 679, 78 S.W. 1006; Aultman & Taylor Co. v. Meade, 1905, 121 Ky. 241, 89 S.W. 137; Warren v. Susman, 1915, 168 N.C. 457, 84 S.E. 760; Burnett v. Dunn Commission & Supply Co., 1920, 180 N.C. 117, 104 S.E. 137; Sandler v. Silk, 1935, 292 Mass. 493, 198 N.E. 749; Peterson v. Kansas City Life Ins. Co., 1936, 339 Mo. 700, 98 S.W.2d 770, 108 A.L.R. 583; Black v. Burd, Tex.Civ.App.1953, 255 S.W.2d 553. As the property had passed into the hands of another who may have been quite innocent, Mrs. Royall properly elected to seek damages, for “Such a suit for damages at law is an especially appropriate remedy where an innocent purchaser buys at foreclosure, because it gives relief against the guilty rather than the innocent party.” Peterson v. Kansas City Life Ins. Co., 98 S.W.2d at page 775.
We conclude that Mrs. Royall should have been allowed to prove, if she could, that the transaction was a usurious loan to her by Yudelevit, that Yudelevit was at the time in violation of the loan shark statute, and that she suffered damages as a result of the foreclosure. Such proof, standing alone, would authorize the jury to return a verdict awarding appellant damages against Yudelevit. He and Simons should be permitted then to introduce evidence tending to show they were innocent transferees, or to establish any other defense they may have. If the jury should find against Yudelevit, and should also conclude from the evidence that Simons took the note and deed of trust with notice of the circumstances in which Yudelevit acquired them, a verdict for damages against Simons also would be warranted.
It follows that the District Court erred in directing a verdict for Yudelevit and Simons. We express no opinion as to the validity of the defense of estop-pel. The judgment is reversed and the cause remanded for a new trial in accordance with this opinion.
So ordered.
. Originally there were two other defendants but Mrs. Royall dismissed the complaint as to them.
. If Yudelevit should be found to be an innocent purchaser for value before maturity without notice of any infirmity or defense, the fact that he bought the note for less than its face value would be im* material.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_casetyp1_2-2
|
B
|
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".
LOCAL NO. 1903 OF the INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW; Gary Swanson, President of Local No. 1903; Jack Harney, Recording Secretary of Local No. 1903; Joan Rasmussen, Vice President of Local No. 1903; William Wolfenbarger, Secretary and Treasurer of Local No. 1903; John Doe and Mary Doe, Members of Local No. 1903, et al., Plaintiffs-Appellants, v. BEAR ARCHERY, Division of Victor Comptometer Corporation; Robert F. Kelly, President of Bear Archery, Division of Victor Comptometer; Nelson A. Miles, Attorney for Defendant Bear Archery, Defendant City of Grayling, Defendant Chief of Police Stephan, and Defendant City Police Department; Peter Stephan, individually and as Chief of Police, City of Grayling, Michigan; City of Grayling, Michigan; Harold Hatfield, Jr., individually and as Sheriff of Crawford County, Michigan; Crawford County Sheriff Department; John B. Huss, individually and as County Prosecutor, County of Crawford, Michigan; and Crawford County, Michigan, Defendants-Appellees.
No. 78-1012.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 30, 1980.
Decided March 6, 1980.
William Rastetter, Cedar, Mich., James M. Olson, Traverse City, Mich., Robert A. Hess, Roscommon, Mich., Leonard R. Page, Detroit, Mich., L. Kent Walton, Traverse City, Mich., Alan V. Reuther, Asst. Gen. Counsel, Detroit, Mich., for plaintiffs-appellants.
Douglas J. Read, Williams, Coulter, Cunningham, Davison & Read, Traverse City Mich., for Crawford Co.
Richard W. Ford, Running, Wise & Wilson, Robert E. Kuhn, Traverse City, Mich., for Grayling Co.
Before EDWARDS, Chief Judge, KEITH, Circuit Judge, and WISEMAN, District Judge.
Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation.
PER CURIAM.
This appeal is taken from a District Court’s judgment dismissing a civil rights action brought pursuant to 28 U.S.C. § 1331(a) (1976), claiming a right to relief under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988 (1976), as well as the Fifth and Fourteenth Amendments to the Constitution of the United States.
The underlying dispute grows out of asserted collective bargaining rights on the part of plaintiff, Local No. 1903 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (henceforth UAW) which asserted rights were denied by defendant, Bear Archery, Division of Victor Comptometer Corporation (henceforth Bear Archery). The dispute in question resulted in a strike which served to divide the City of Grayling, Michigan and the County of Crawford in bitter controversy. At the aftermath of the strike, the UAW filed the instant complaint, alleging (among other things):
Defendants herein under color of law have by act or neglect deprived Plaintiffs of their constitutionally and federally protected rights of speech, picketing, sign communication or other forms of communicative or informational expression; or Defendants have by act or neglect chilled the exercise of such rights and privileges; the acts or neglect or omissions consist of in part the following:
Following the paragraph just quoted above, plaintiff-appellant recited (in 20 separate paragraphs) a variety of asserted actions on the part of city and county officials which they rely on as constituting injury.
The District Judge in the Eastern District of Michigan who heard this case held that defendants Crawford County, Crawford County Sheriff Department, City of Grayl-ing and City of Grayling Police Department are absolutely immune from suit under 42 U.S.C. § 1983 (1976):
Said defendants are not persons under 42 USC 1983, and no cause of action can be found against them unless they are subject to having liability imposed vicariously under the doctrine of respondeat superior. However, this doctrine also does not apply to suits under 42 USC 1983.
After the District Judge’s decision in this case, the Supreme Court of the United States decided Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1958). In a lengthy analysis the Supreme Court overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to the extent that it was inconsistent with the holdings in Monell, supra. In the opinion of the Court, the Supreme Court stated:
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970): “Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
We begin with the language of § 1983 as passed:
u[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . 17 Stat. 13 (emphasis added).
The italicized language plainly imposes liability on a government that, under col- or of some official policy, “causes” an employee to violate another’s constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A’s tort became B’s liability if B “caused” A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.
See Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 602, 46 L.Ed.2d 561 (1976).
Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e. g., ibid.; 2 F. Harper & F. James, The Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory. See, e. g., id., § 26.5; Prosser, supra, at 459.
The first justification is of the same sort that was offered for statutes like the Sherman amendment: “The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation.” Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: “we do not look upon [the Sherman amendment] as a punishment . . . . It is a mutual insurance.” Id., at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.
Monell v. New York City Department of Social Services, 436 U.S. at 690-695, 98 S.Ct. at 2035-2038.
Under these circumstances, we vacate the judgment of the District Court previously referred to and remand for further consideration of this case under the standards quoted above of Monell v. New York City Department of Social Services, supra.
There is certainly no constitutional impediment to municipal liability. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” Milliken v. Bradley, 433 U.S. 267, 291 [97 S.Ct. 2749, 2762, 53 L.Ed.2d 745] (1977); see Ex parte Virginia, 100 U.S., [339] at 347-348 [25 L.Ed. 676], For this reason, National League of Cities v. Usery, 426 U.S. 833 [96 S.Ct. 2465, 49 L.Ed.2d 245] (1976), is irrelevant to our consideration of this case. Nor is there any basis for concluding that the Eleventh Amendment is a bar to municipal liability. See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 [96 S.Ct. 2666, 2671, 49 L.Ed.2d 614] (1976); Lincoln County v. Luning, 133 U.S. 529, 530 [10 S.Ct. 363, 33 L.Ed. 766] (1890). Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes.
Since official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent — at least where Eleventh Amendment considerations do not control analysis — our holding today that local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are “persons” under § 1983 in those cases in which, as here, a local government would be suable in its own name.
See also Mr. Justice Frankfurter’s statement for the Court in Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 [60 S.Ct. 968, 972, 84 L.Ed. 1254] (1940):
“It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.”
Support for such a conclusion can be • found in the legislative history. As we have indicated, there is virtually no discussion of § 1 of the Civil Rights Act. Again, however, Congress’ treatment of the Sherman amendment gives a clue to whether it would have desired to impose respondeat superior liability.
The primary constitutional justification for the Sherman amendment was that it was a necessary and a proper remedy for the failure of localities to protect citizens as the Privileges or Immunities Clause of the Fourteenth Amendment required. See supra, at 670-673. And according to Sherman, Shellabarger, and Edmunds, the amendment came into play only when a locality was at fault or had knowingly neglected its duty to provide protection. See Globe 761 (Sen. Sherman); id., at 756 (Sen. Edmunds); id., at 751-752 (Rep. Shellabarger). But other proponents of the amendment apparently view it as a form of vicarious liability for the unlawful acts of the citizens of the locality. See id., at 792 (Rep. Butler). And whether intended or not, the amendment as drafted did impose a species of vicarious liability on municipalities since it could be construed to impose liability even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it. Indeed, the amendment held a municipality liable even if it had done everything in its power to curb the riot. See supra, at 668; Globe 761 (Sen. Stevenson); id., at 771 (Sen. Thurman); id., at 788 (Rep. Kerr); id., at 791 (Rep. Willard). While the first conference substitute was rejected principally on constitutional grounds, see id., at 804 (Rep. Poland), it is plain from the text of the second conference substitute — which limited liability to those who, having the power to intervene against Ku Klux Klan violence, “neglect[ed] or refuse[d] so to do,” see Appendix to this opinion, infra, at 704, and which was enacted as § 6 of the 1871 Act and is now codified as 42 U.S.C. § 1986 — that Congress also rejected those elements of vicarious liability contained in the first conference substitute even while accepting the basic principle that the inhabitants of a community were bound to provide protection against the Ku Klux Klan. Strictly speaking, of course, the fact that Congress refused to impose vicarious liability for the wrongs of a few private citizens does not conclusively establish that it would similarly have refused to impose vicarious liability for the torts of a municipality’s employees. Nonetheless, when Congress’ rejection of the only form of vicarious liability presented to it is combined with the absence of any language in § 1983 which can easily be construed to create respondeat superior liability, the inference that Congress did not intend to impose such liability is quite strong.
A third justification, often cited but which on examination is apparently insufficient to justify the doctrine of respondeat superior, see, e. g., 2 F. Harper & F. James, § 26.3, is that liability follows the right to control the actions of a tortfeasor. By our decision in Rizzo v. Goode, 423 U.S. 362 [, 96 S.Ct. 598, 46 L.Ed.2d 561] (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability. See id., at 370-371 [, 96 S.Ct. at 602].
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:
|
songer_stpolicy
|
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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
SHIELDS-JETCO, INC., et al., Plaintiffs, Appellees, v. Emanuel TORTI, Defendant, Appellant.
No. 7750.
United States Court of Appeals, First Circuit.
Jan. 19, 1971.
Elliot A. Salter, Providence, R.I., with whom Leonard Michaelson and Salter & Michaelson, Providence, R.I., were on brief, for appellant.
Thomas A. Harwood, Dallas, Tex., with whom Hinckley, Allen, Salisbury & Parsons, Providence, R.I., was on brief, for appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
This appeal by Emanuel Torti, the owner of Patent No. 3,089,310, from a finding of non-infringement raises a single question. The patent, known as a Trench Shoring Machine, is a combination patent that provides self-propelled parallel shields, whose purpose is to line and shore both sides of the trench during back-hoe and pipe-laying operations, “to prevent cave-ins and the like.” There is substantial need for such a device because pipes are l^id in relatively unstable earth or sand in depths up to and exceeding 20 feet. The described device has a solid back-end, containing an aperture at the bottom portion, to permit straddling the already laid pipe. The side walls partially telescope, laterally, and can be extended forward by hydraulic pressure. The patent claims, in addition, a top wall.
A top wall is perhaps needed only when a great depth is being reached and the entire machine operates below grade. In these circumstances the phrase “and the like” doubtless applies to falling debris and cave-ins from overhead. However, we observe in the descriptive portions of the patent, “It will also be noted that the workers are protected from inclement weather.” To the extent that there is value to this last, it must be unrelated to whether the top is below or above grade.
It may be that, except when operating below grade, a top wall may, on balance, be an inconvenience, since the'pipe sections that are about to be laid must be introduced from overhead. In any event, Shields-Jeteo, Inc., plaintiff in a petition for a declaratory judgment of non-validity and non-infringement, manufactures a device that essentially copies Torti in all other respects, but, plaintiff alleges, omits the top wall or any equivalent thereof. The correctness of this allegation is the sole issue. The district court, although recognizing the perhaps greater, inventiveness of the rest of the device, found in plaintiff’s favor, and held this absence fatal to Torti’s claim of infringement. 314 F.Supp. 1292. Torti appeals.
At first blush one might think that omitting the top wall, with the consequent lessening of the protection to the workers below, might invoke the rule that the omission of part of a device, accompanied by a corresponding loss of function, may not prevent infringement. Cf. Hobbs v. Beach, 1901, 180 U.S. 383, 401, 21 act. 409, 45 L.Ed. 586; McDonough v. Johnson-Wentworth Co., 8 Cir., 1928, 30 F.2d 375, 384, cert. denied 280 U.S. 572, 50 S.Ct. 28, 74 L.Ed. 624. However, for reasons that we need not pursue, very possibly a fear that he would lose on the issue of validity of the patent, Torti conceded in the district court, and concedes here, that in order to succeed he must establish that the accused device has a top wall, or at least its equivalent.
It is plain that plaintiff’s accused device contains no full top wall. The back end has a shield, sometimes referred to as a doghouse, over the pipe-exiting aperture. This protects from encroachment by loose backfill. If this shield should be regarded as the equivalent of a top wall, it relates to a very small portion of the machine. The sidewalls extend for considerable length, the exact maximum or minimum not appearing, but the scale model suggests some fifteen feet. Between them there is no top wall as such. Somewhere near the middle, and somewhat below the top, there is a narrow bridge or catwalk, where the operator stands. This platform is but three to four feet wide. It is apparent that it covers considerably, probably very considerably, less than half of the total open working space between the side walls. Torti claims that this catwalk is the equivalent of a top wall. The court found otherwise.
We see no merit in this appeal. Passing the fact that the patent drawings show a complete top wall (with a trapdoor), there is no suggestion, in the claims or elsewhere, that the term “top wall” means a partial as distinguished from a complete top wall. The most that it might be open to Torti to say is that whether this looser interpretation was available to the patentee was a question of fact. Such a claim cannot go to the point of saying that the district court was obliged to find that “top wall” meant “partial top wall.” The court refused to give this loose interpretation, and found that within the meaning of the patent “top wall” meant a complete wall, not a small part of one.
This conclusion was far from plainly wrong. Manifestly men working in a trench some fifteen feet long would receive very little protection from surface cave-ins, falling debris, or the elements, by a platform covering only three or four feet thereof. Torti’s further argument, that the rest of the device, apart from the top wall, constituted the “pith of the invention,” runs counter to his concession of the necessity of a top wall. It cannot be entertained.
The judgment based upon a finding of non-infringement is affirmed.
. The file wrapper shows that plaintiff argued to the examiner, in seeking to claim invention over the Everson patent, “the provision of a roof or top wall or cover is neither obvious nor a simple change lacking in invention.”
. And see n. 1, ante, showing that in support of invention plaintiff referred to the top wall as a “roof * * * or cover.”
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
UNITED STATES ex rel. BOGISH v. TEES.
No. 11209.
United States Court of Appeals, Third Circuit.
Submitted Feb. 18, 1954.
Decided March 9, 1954.
Alex Bogish, pro se.
W. Wilson White, U. S. Atty., D. Donald Jamieson, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before MARIS, KALODNER and STALEY, Circuit Judges.
MARIS, Circuit Judge.
This is an appeal by the relator from the denial by the United States District Court for the Eastern District of Pennsylvania of his petition for a writ of ha-beas corpus. The relator had been convicted in the same district court on an indictment charging him with violating the federal narcotic laws and had been sentenced to 60 days imprisonment on each of the three counts of the indictment, to be served concurrently. On appeal his conviction was affirmed by this court. United States v. Bogish, 3 Cir., 1953, 204 F.2d 507.
It appears that the relator had previously been convicted of a crime in a Pennsylvania state court. At the time of his conviction in the United States District Court he was on parole from the state penitentiary. Following his discharge from his federal imprisonment he was recommitted to the state penitentiary as a parole violator by the Pennsylvania Board of Parole and he is now serving the remainder of his original state sentence. The relator now seeks release from the state penitentiary by habeas corpus on the ground that his conviction in the United States District Court was in violation of his constitutional rights and that accordingly the revocation of his parole by the Pennsylvania Board of Parole because of that conviction was invalid. He does not attack the validity of his state conviction or sentence.
It is clear that the relator’s petition for the issuance of a writ of habeas corpus was properly denied. The relator seeks to be released from state custody but has failed to show that he has exhausted his state remedies or that such remedies are unavailable or ineffective, which under section 2254 of Title 28, United States Code, is a condition precedent to the issuance of the writ by a federal court in such a situation. For while it has been held that habeas corpus is not available in Pennsylvania to review the actions of the Board of Parole, it does appear that arbitrary or unlawful action on the part of the Board is reviewable by the Pennsylvania courts in a mandamus proceeding. Moreover the Pennsylvania parole law confers upon the Board a wide discretion as to the recommittal or continuance on parole of a parolee regardless of whether he has been convicted during his parole of another crime or has been guilty of a “technical” parole violation only. It is, therefore, not inconceivable that the Board might reparole the relator or revoke his recommittal if he made a convincing showing that his federal conviction was invalid by reason of a constitutional infirmity and that the interests of society would best be served by his restoration to parole. This may be possible even though the Board could not be compelled to make a declaratory ruling that the conviction was invalid. On the other hand it may be that the action of the Board in recommitting the relator was not based solely on his federal conviction. It might have been based also on conduct on his part which would have made his recommittal appropriate regardless of his federal conviction. This we cannot know since the relator has made no application for relief either to the Pennsylvania Board of Parole or to the courts of that state. His application to the district court for habeas corpus is, therefore, barred by section 2254.
Furthermore we see no basis for supposing that in any event the relator could secure the relief he desires through a writ of habeas corpus directed to his state custodian. For in such a ha-beas corpus proceeding he would have to establish that his detention under his state sentence is unlawful since it is under that sentence that he is held in custody having been recommitted to serve it out by the Board of Parole. But the state sentence is not challenged and the action of the Board in recommitting the relator on the basis of his federal conviction, assuming that was the sole basis for its action, could hardly be stamped as invalid unless it could be said that the Board was wrong in giving such faith and credit to the final and unimpeached judgment of the federal district court in the relator’s case. It would be extravagant to think that any court would so hold.
Parole in Pennsylvania has been held to be purely a matter of grace and not of right. “It does not obliterate the crime or forgive the offender. It is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution.” Commonwealth ex rel. Banks v. Cain, 1942, 345 Pa. 581, 585, 28 A.2d 897, 899, 143 A.L.R. 1473. In view of the nature of parole and the broad discretion which, as we have seen, is vested in the Pennsylvania Board of Parole in its administration we think it probable that the most to which the relator would be entitled would be reconsideration by the Board of his recommittal as a parole violator if and when he is able to establish that his federal narcotic law conviction is void.
The dilemma with which the relator is faced is thus apparent. He must establish the invalidity of his federal conviction before he can ask the Pennsylvania Board of Parole to revoke its action in recommitting him because of that conviction. And he cannot establish the invalidity of that conviction in a habeas corpus suit directed against his state custodian. Nor can he do so in a statutory proceeding under section 2255 of title 28, United States Code. For the remedy given by that section is available only to a prisoner who is actually in custody under the sentence which he seeks to set aside. Here the relator has served in full the sentence imposed by the district court and is now, as we have seen, a prisoner in the custody of a state penitentiary warden under the sentence of a state court.
There is, however, a procedure by which one in the position of the relator can obtain a determination of the constitutional validity of a criminal judgment against him which has been fully executed but the effects of which persist to his detriment. This may be accomplished by a motion in the nature of a writ of error coram nobis. United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247. In the Morgan case the Supreme Court suggested that in behalf of unfortunate prisoners without friends or funds a court should act in doing justice, if the record makes plain a right to relief, without regard to legalistic requirements of pleading, citing Darr v. Burford, 1950, 339 U.S. 200, 203-204, 70 S.Ct. 587, 94 L.Ed. 761.
We conclude that the interests of justice require us to approach the present case in this way. While it is true that the United States is not technically the respondent in this case as it should be on a motion in the nature of a writ of coram nobis it has nonetheless appeared in the person of the United States Attorney who has filed a brief in support of the validity of the judgment of the district court which is under attack by the relator. We, therefore, think it proper to consider the relator’s petition, which as we have seen is not sufficient for the issuance of a writ of habeas corpus, as though it were a motion in the nature of a writ of error coram nobis seeking to set aside the relator’s conviction in the district court. So considered it still appears that the district court did not err in denying relief to the relator. For there is nothing averred in his petition which would amount to a violation of his constitutional rights.
The relator complains that he was denied a preliminary hearing before a United States Commissioner. But when he was indicted in the district court he was a prisoner in a Pennsylvania state jail. He had not previously been arrested on the federal charge. It is settled that an accused may be indicted without prior arrest or commitment by a commissioner. If this is done there is no right to or occasion for a preliminary hearing before a commissioner. The relator’s contention that he was denied a hearing before a commissioner is, therefore, wholly without merit. The relator’s other contentions amount solely to an attack upon the competency of the evidence upon which he was convicted. These contentions were fully considered on the relator’s appeal from his conviction and were decided against him by this court. They involve no questions so fundamental that they may be raised on a motion in the nature of a writ of coram nobis.
The order of the district court will be affirmed.
. Commonwealth ex rel. Biglow v. Ashe, 1944, 348 Pa. 409, 35 A.2d 340; Commonwealth ex rel. Hornberger v. Burke, 1952, 53 Lanc.Law Rev.,Pa., 141.
. Commonwealth ex rel. Atkins v. Pennsylvania Board of Parole, 1952, 63 Dauphin County Rep.,Pa., 239.
. 61 P.S.,Pa., §§ 331.21, 331.21a.
. See Ex parte Hull, 1941, 312 U.S. 546, 550, 61 S.Ct. 640, 85 L.Ed. 1034; and compare People v. McCullough, 1949, 300 N.Y. 107, 89 N.E.2d 335.
. Lopez v. United States, 9 Cir., 1950, 186 F.2d 707; United States v. Bradford, 2 Cir., 1952, 194 F.2d 197, certiorari denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371; United States v. Lavelle, 2 Cir., 1952, 194 F.2d 202; Farnsworth v. United States, 1952, 91 U.S.App.D.C. 121, 198 F.2d 600, certiorari denied 344 U.S. 915, 73 S.Ct. 338, 97 L.Ed. 706; United States v. Kerschman, 7 Cir., 1953, 201 F.2d 682.
. U. S. ex rel. Kassin v. Mulligan, 1935, 295 U.S. 396, 400, 55 S.Ct 781, 79 L. Ed. 1501; Garrison v. Johnston, 9 Cir., 1939, 104 F.2d 128, 130; O’Grady v. Hiatt, D.C.M.D.Pa.1943, 52 F.Supp. 213, affirmed 3 Cir., 1944, 142 F.2d 558; United States v. Liebrich, D.C.M.D.Pa. 1932, 55 F.2d 341; United States v. Gray, D.C.1949, 87 F.Supp. 436.
. Barber v. United States, 4 Cir., 1944, 142 F.2d 805, 807.
. United States v. Mayer, 1914, 235 U. S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129; United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247.
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_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America v. LOCAL 560 (I.B.T.), Nominal Defendant (Intervenor), Appellant in No. 91-5440, and Michael Sciarra; Joseph Sheridan, Michael Sciarra, Appellant in No. 91-5441.
Nos. 91-5440, 91-5441.
United States Court of Appeals, Third Circuit.
Argued Feb. 10, 1992.
Decided Aug. 18, 1992.
Michael Chertoff, U.S. Atty., Colette R. Buchanan (argued), Asst. U.S. Atty., Michael Chagares (argued), Asst. U.S. Atty., Robert C. Stewart, Asst. U.S. Atty., Newark, N.J., for appellee.
Samuel J. Buffone (argued), Terrance G. Reed, Asbill, Junkin, Myers & Buffone, Washington, D.C., Michael Critchley, West Orange, N.J., Paul Montalbano, Schneider, Cohen, Solomon, Leder & Montalbano, Cranford, N.J., for appellant in 91-5440, Local 560.
Peter V. Ryan (argued), West Orange, N.J., for appellant in 91-5441, Michael Sci-arra.
Albert G. Kroll, Verona, N.J., for amicus curiae, New Jersey State AFL-CIO, in support of appellants.
Before: BECKER, ROTH, and HIGGINBOTHAM, Circuit Judges.
TABLE OF CONTENTS
PAGE
I. FACTS AND PROCEDURAL HISTORY.322
A. The Local 560 Litigation.322
B. Events Leading to Issuance of the Permanent Injunction Against Sciarra.324
C. Summary.328
II. SCIARRA’S PROCEDURAL OBJECTIONS.328
III. SUFFICIENCY OF THE EVIDENCE TO SUPPORT ISSUANCE OF THE
PERMANENT INJUNCTION.330
A. What the Government Must Prove to Obtain Modification of the Injunction.331
B. Sufficiency of the Evidence.333
IV. ADMISSIBILITY OF THE IANIELLO/ANDRETTA TAPES AGAINST SCIARRA.337
A. Were Sciarra and the Genovese Family Members Co-Conspirators?... 338
B. Were the Statements Made During the Course of the Conspiracy?... 338
V. LOCAL 560’S STANDING TO OBJECT TO THE INJUNCTION.339
A. Overview of Organizational Standing.339
B. Concrete Injury.340
C. Relationship to Organizational Purpose.341
PAGE
VI. LOCAL 560’S FIRST AMENDMENT OBJECTIONS TO THE INJUNCTION.342
A. Introduction. 03 CO
B. Does the Injunction Violate Local 560’s Members’ Associational Rights?. 03 CO
1. Is There a Compelling Governmental Interest?. CO CO
2. Is the Injunction Sufficiently Narrowly Tailored?. ^ CO
a. Ban on Officeholding. Tji CO
b. Other Restrictions of the Injunction. Tjl ^ CO
VII.LOCAL 560’S OBJECTIONS TO THE INJUNCTION BASED ON LMRDA.. ^ CO
A. Section 411(a)(1). o ^ CO
B. Section 411(a)(2)..... CO
VIII.VALIDITY OF THE INJUNCTION UNDER RICO. 347.
IX.CONCLUSION...348
OPINION OF THE COURT ■
BECKER, Circuit Judge.
This case arises from the government’s ongoing effort to purge Local 560, International Brotherhood of Teamsters (“Local 560,” or “the local”), of the influence of organized crime. Through the use of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961 to 1968 (West, 1984 and 1992 Supp.), the government has, over the past ten years, succeeded in imposing a trusteeship on the local and in obtaining court orders enjoining corrupt individuals from participating in the affairs of Local 560. This appeal concerns the government’s efforts to prevent Michael Sciarra, a former Local 560 president and business agent alleged to have links to organized crime, from participating in the -union’s affairs.
The government presented evidence to the district court that, despite prior injunctions issued against some of Local 560’s members, including Sciarra, Sciarra was undeterred in his efforts to retain a role in Local 560 for the Genovese organized crime family. As a result, the district court issued a detailed permanent injunction which enjoined Sciarra from, among other things, holding any position of trust in the local and from attempting to influence the local’s affairs. Both Sciarra and Local 560 appeal from the entry of the injunction against him.
Sciarra points out that the government never filed a formal complaint in the district court pursuant to Rule 3 of the Federal Rules of Civil Procedure (“FRCP”) in seeking this latest injunction, and submits that the district court therefore lacked subject matter jurisdiction to issue it. He also argues that there was insufficient evidence to demonstrate that he was frustrating the purposes of the original, less restrictive injunction issued against him, and that the district court was therefore not entitled to issue this more drastic injunction. Finally, he contends that tapes of recorded conversations between Genovese Family members, which were considered by the district court in deciding to issue the injunction, were erroneously admitted as co-conspirator statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence (“FRE”).
The government responds that its complaint in this portion of the ongoing Local 560 action was an amendment to the original complaint and that, therefore, no new complaint was necessary to initiate this portion of the litigation. Further, the government points to several pieces of evidence which suggest that Sciarra had corrupt dealings with organized crime after entry of the initial injunction against him and contends that this evidence is sufficient to support the more drastic injunctive relief granted by the district court. Finally, the government submits that the tape-recorded conversations admitted against Sciarra were properly received as co-conspirators’ statements under FRE 801(d)(2)(E).
On behalf of its membership, Local 560 objects to the injunction because, it claims, the injunction impermissibly infringes on its members’ First Amendment associational rights. The local also urges that the injunction infringes on its members’ statutorily protected rights under the Labor Management Reporting and Disclosure Act (LMRDA), 29 USCA §§ 401 to 531 (West, 1985 and 1992 Supp), and that section 1964(a) of RICO does not authorize such an injunction. The government concedes that the injunction will infringe on the associational rights of Local 560’s membership under the First Amendment and LMRDA, but argues that the injunction is justified because it is narrowly tailored to further a compelling governmental interest.
For the reasons that follow, we reject the claims of Sciarra and the local and will affirm the judgment of the district court in all respects.
I. FACTS AND PROCEDURAL HISTORY
A. The Local 560 Litigation
Although the government here seeks an injunction only against Sciarra, a review of the lengthy government-initiated litigation against Local 560 is necessary to understand the issues in the present appeal.
In March 1982, the government filed a civil complaint against twelve individuals affiliated with Local 560 who, the government alleged, were involved in facilitating organized crime’s control of Local 560. Five of these individuals — Anthony Proven-zano, Nunzio Provenzano, Steven Andretta, Thomas Andretta, and Gabriel Briguglio— were alleged to be associates of the “Pro-venzano Group,” an organization affiliated with the Genovese organized crime family. The remaining seven defendants — Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J.W. Dildine, Thomas Reynolds, Stanley Jaronko, and Michael Sciarra — were the members of the Executive Board of Local 560 at the time. The government claimed that this latter group of individuals had aided and abetted the Provenzano group in using Local 560 for corrupt ends.
In its complaint, the government alleged that all twelve individuals had violated 18 U.S.C.A. § 1962(c) by engaging in a pattern of racketeering activity, which included murder, numerous acts of extortion, and labor racketeering. See United States v. Local 560 (IBT), 581 F.Supp. 279, 333-34 (DNJ 1984). The government sought in-junctive relief under 18 U.S.C.A. § 1964(a) which would prohibit the five members of the Provenzano Group from having any dealings with Local 560 or its membership. Against the remaining seven individuals, the government sought an injunction barring them from acting in any official capacity on behalf of Local 560. The government further sought to impose a trusteeship on Local 560; the trustee would perform all the functions of the former Executive Board until the environment in the union was appropriate for a free election.
In 1984, after a lengthy trial, the district court granted the relief that the government sought. As a result, the members of the Provenzano Group were prohibited from having any dealings with Local 560. Michael Sciarra and the six other members of the Executive Board were prohibited from acting in an official capacity on behalf of Local 560. Additionally, the court imposed a trusteeship “for such time as is necessary to foster the conditions under which reasonably free supervised elections can be held, presumptively for eighteen months.” See Local 560, 581 F.Supp. at 337.
The imposition of the trusteeship was stayed until all appeals had been resolved. We affirmed the issuance of that injunction. See Local 560, 780 F.2d at 267. On June 23, 1986, the trusteeship was put in place. Thus, more than two years passed between the district court’s order calling for a trusteeship and the actual creation of the trusteeship. During that time, Michael Sciarra succeeded Salvatore Provenzano as the president of Local 560. As we will see, Sciarra’s actions during the two years that he was president of the local are relevant to the determination whether he should now be enjoined from participating in all the affairs of Local 560.
Several orders sought by the government during the ongoing trusteeship of Local 560 generated controversies that required the district court’s and our consideration and are relevant to the present appeal. Among these was an order to show cause issued by the district court in 1988 against Sciarra and Joseph Sheridan, another of the allegedly corrupt officials of Local 560. The order required Sciarra and Sheridan to show cause why they should not be compelled to submit to oral depositions concerning their stewardship during the two-year period in which Sciarra served as president while the appeal was pending. The district judge issued the order at the government’s request and over the objection of Sciarra and Sheridan. On appeal, we affirmed the order to show cause because Sciarra and Sheridan had not demonstrated Article III injury. See Sciarra, 851 F.2d 621.
During the period of trusteeship, the trustee, Edwin Stier, attempted to create an environment in Local 560 in which uninhibited union democracy could flourish. His efforts were vigorously opposed by a group known as Teamsters for Liberty, which severely criticized the trusteeship. Among the Teamsters for Liberty’s adherents were Sciarra, Sheridan, and other individuals who had formerly been found to be under the influence of the Provenzano Group. Despite the emergence of these anti-trusteeship forces, Trustee Stier concluded in 1988, that Local 560 was sufficiently purged of corruption and intimidation to permit free elections. Pursuant to an order obtained from the district court, Stier scheduled an election for officers of the Executive Board, to be held in November 1988.
The Teamsters for Liberty proposed to run Sciarra and Sheridan for Local 560 President and Vice President, respectively, in the November 1988 election. The government, concerned that Sciarra and Sheridan would return control of the local to the Provenzano Group and the Genovese Family, sought an injunction against the candidacies of both men. It did so by filing an “Application for Additional Relief” with the district court. In the Application, the government asserted that Sciarra had remained under the influence of the Ge-novese Family during the*period in which he served as president of Local 560. The Application further alleged that the Ge-novese Family had designs on Local 560 and that Sciarra was crucial in their plan to reassert control.
The district court treated the government’s Application as a motion to amend or supplement the complaint pursuant to Rule 15(a) of the FRCP. After conducting a hearing in September 1988, the court agreed with the government that Local 560 might again become corrupt if a Sciar-ra/Sheridan ticket were to be victorious; the court therefore temporarily enjoined Sciarra and Sheridan from running in the upcoming election. See Local 560, 694 F.Supp. at 1158. We affirmed the issuance of that temporary injunction by judgment order. See Local 560 (IBT), 865 F.2d 253.
Undaunted, the Teamsters for Liberty nominated Daniel Sciarra, Michael Sciarra’s brother, to run for President of Local 560 and Mark Sheridan, Joseph Sheridan’s nephew, to run for Vice President. The election was held on December 6, 1988. In balloting that was apparently fair, the Teamsters for Liberty candidates won. Upon assuming office in January 1989, the new Executive Board almost immediately appointed Michael Sciarra and Joseph Sheridan business agents of the local. The government obtained an order that required both Joseph Sheridan and Michael Sciarra to show cause why they should not be prohibited from holding office in Local 560. The district court initially concluded that there was insufficient evidence to enjoin Sciarra and Sheridan from holding the office of business agent, and both men began serving in that capacity.
A little more than a year later, in early 1990, the government entered into an agreement with Joseph Sheridan whereby Sheridan consented to resign as a business agent of Local 560 and to cease attempting to influence its affairs. The government apparently sought the agreement because it believed that Sheridan was still involved in corrupt activitjes. In February 1990, the government moved, on the basis of new evidence, to bar Michael Sciarra from holding any position of trust in the union. The district court, after holding a hearing, granted a preliminary injunction prohibiting Sciarra from “continuing as a Local 560 business agent, from holding any other position within Local 560 and from seeking to exert influence or control over the affairs of Local 560 or any of its benefit plans.” See United States v. Local 560 (IBT), 736 F.Supp. 601, 613 (D.N.J.1990).
Shortly thereafter, the court began proceedings to determine whether a permanent injunction should issue. After a trial, at which both sides offered evidence, the district court concluded that any exercise of influence by Sciarra would be dangerous to the corruption-free environment of Local 560. Based on section 1964(a) of RICO, the court therefore enjoined Sciarra as follows: Michael Sciarra... is hereby permanently enjoined and prohibited from doing any of the following, to wit:
1. From serving in or otherwise holding any position of trust or employment within and from rendering any form of service (whether or not for remuneration) to Local 560 (IBT) or any of its benefit plans;
2. From attending and otherwise participating in any membership meeting, function or rally — including any public or private demonstration of support for any strike action — sponsored by or otherwise involving Local 560 (IBT), provided, however, that he shall not be precluded from casting a ballot in any election or on any questions if that can be done without attending a meeting of the membership;
3. From attending and otherwise participating in any political rally, fund-raiser or other function of whatever kind or description relating to the political affairs of Local 560 (IBT);
4. From otherwise endeavoring, directly or indirectly, to influence the affairs of Local 560 or any of its benefit plans; and
5. From frequenting the union hall at 707 Summit Avenue, Union City, New Jersey except to the minimum extent necessary to discharge, without any unreasonable delay, a matter of personal union membership-related business, providing that any such matter cannot be reasonably discharged by means of telephone or correspondence.
Both Sciarra and Local 560 have appealed from the entry of this permanent injunction. We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West, 1966 and 1992 Supp.).
B. Events Leading to Issuance of the Permanent Injunction Against Sci-arra
The facts justifying entry of the original injunction against Sciarra in 1984, which prohibited him from representing Local 560 in an official capacity, are detailed in the district court’s original opinion. See Local 560, 581 F.Supp. at 302-03, 325. It suffices to say for present purposes that Sciarra was involved in creating a corrupt environment in Local 560 before 1982. His own testimony at the first proceeding that he would welcome members of the Provenza-no Group back into Local 560 even though they had ordered the murders of those who opposed their interests and had corrupted Local 560, see id, was sufficient to justify entering the initial injunction against him under 18 U.S.C.A. § 1964(a).
In this appeal, however, we are concerned primarily with Sciarra’s conduct after the district court entered the initial injunction. To expand the scope of the injunctive relief against Sciarra, the government must show that events subsequent to that injunction justify additionaf relief. In the present phase, the district court found that, despite the first injunction, Sciarra was undeterred in his willingness to open Local 560 to the corrupting influence of the Genovese Family and the Provenzano Group. This conclusion was based on evidence adduced at various proceedings before the district court which suggested that Sciarra is under the influence of the Genovese Family and that he, in turn, can control the local with minimal contact, and thereby return Local 560 to Genovese Family control. More specifically, the district court held that several pieces of evidence, which we now detail, demonstrated an ongoing violation of 18 U.S.C.A. § 1964 that justifies prohibiting Sciarra from attempting to influence the local in any way.
1. Intercepted Wire Conversations
First, the district court relied on a series of tape-recorded conversations between various individuals affiliated with the Pro-venzano Group and the Genovese Family. The government claims that the conversations, which primarily concerned the Pro-venzano Group’s efforts to retain control over Local 560 after entry of the district court’s injunction, demonstrate the continued involvement of Sciarra in organized crime.
The tapes recorded the following conversations: 1) a conversation between Matthew Ianiello, a so-called “captain” in the Genovese Family, and Stanley Jaronko, a member of the Executive Board of Local 560, concerning how the Genovese Family would retain control over the local after the district court’s initial decision imposing the trusteeship; 2) two conversations between Ianiello and Stephen Andretta, also concerning how the Genovese Family could retain control over Local 560; and 3) a conversation among Anthony Salerno, the then-boss of the Genovese Family, Louis Gatto, a captain in the Family, and two other individuals concerning how the Ge-novese Family could retain control over Local 560. During all four of these conversations, the participants discussed controlling the local through “Michael,” “Mike,” “Mikey,” or “Mikey Sciarra.”
The district court agreed with the government that the tapes demonstrated that the Genovese Family was attempting to maintain control over Local 560 by controlling Michael Sciarra:
The tapes constitute strong evidence that the Genovese Crime Family intended to maintain its control over Local 560 during the pendency of the appeal from Judge Ackerman’s March 16, 1984 Judgment Order, during any period of trusteeship, and thereafter. The tapes constitute strong evidence that this control was to be exercised through Anthony Salerno’s caporegime Matthew Ianiello and that Ianiello, upon the advice of Stephen Andretta, selected Michael Sciarra to be the man on the scene at Local 560 to whom orders and instructions could be given.
Local 560, 694 F.Supp. at 1178.
2. The New England Motor Freight “Sweetheart” Deal
The government also presented evidence in the district court that there was a “sweetheart” relationship between Local 560 and a trucking company, New England Motor Freight (NEMF), from 1975 through mid-1986, and that Sciarra facilitated the relationship during its latter stages. NEMF was party to a collective bargaining agreement with a bargaining unit affiliated with Local 560. Moreover, until 1977, NEMF was party to the Teamsters National Master Freight Agreement (NMFA), the industry-wide agreement governing the trucking industry. The government presented evidence that during the 1970s, Myron Shevell, NEMF’s president, cultivated a corrupt relationship with various officials inside Local 560, including Anthony Provenzano and Stephen Andretta. The leadership of Local 560 agreed with Shevell in the late 1970’s to allow NEMF to deviate from the NMFA in its employment practices. This allowed NEMF to expand its non-unionized workforce and gradually to decrease the size of the Local 560 collective bargaining unit that was working at NEMF. Although the record is not entirely clear on this point, the leadership of Local 560 apparently received some benefit in return.
Evidence presented in the district court suggested that the corrupt arrangement between Local 560 and NEMF continued beyond the entry of the initial injunction in 1984. Three pieces of evidence link the corrupt post-injunction dealings between NEMF and Local 560 during this period to Sciarra.
First, in 1983, Salvatore (“Sammy”) Pro-venzano, then the president of Local 560, became disenchanted with the local’s arrangement with NEMF and directed that a grievance be filed against NEMF alleging unfair labor practices. The grievance asserted that all NEMF warehousemen and drivers were covered by the NMFA and that NEMF, in deviating from the terms of the NMFA, had engaged in an unfair labor practice. But not everyone in the Proven-zano Group and the Genovese Family was pleased by the souring of relations between Local 560 and NEMF. The recorded conversations between Ianiello and Andretta reveal that they wanted to undo Provenza-no’s effort to punish NEMF through the grievance procedure. Ianiello suggested a way to do so during their December 7, 1984 conversation:
Ianiello: Michael’s business. Let’s let Michael try to square it (unintelligible).
Andretta: Sammy [Provenzano], but Sammy got shoved out of the office. He’s gotta step down, he kept pushing the guy. Instead of letting him go, nobody gets in trouble.
Ianiello: Yeah, I wanted to do it.
Andretta: He came to tell Mikey last month (unintelligible). He says don’t let up on the fucking guy. Crucify and bury him. I said no you gonna get five guys locked up with the mother fucker.
Ianiello: Don't do it. Tell Mikey not to do it.
Local 560, 754 F.Supp. at 404. The district court found that this was a reference to allowing Sciarra to repair damaged relations with NEMF. See Local 560, 754 F.Supp. at 404; Local 560, 694 F.Supp. at 1179.
Second, Sciarra’s actions during 1984 and 1985 demonstrate that he was attempting to solidify the corrupt relationship between NEMF and Local 560. In January 1985, Sciarra sent a proposed collective bargaining contract to NEMF’s attorney, which the district court found was unreasonably favorable to NEMF. The district court further found that Sciarra sent this collective bargaining agreement to NEMF in order to preserve the corrupt relationship and to prevent officials at NEMF from revealing its corrupt dealings with certain individuals affiliated with Local 560, including Ianiello and Andretta.
Third, the district court found that the behavior of Daniel Rubino, Local 560’s business agent for NEMF, demonstrated that Sciarra was under the influence of the Genovese Family in conducting Local 560’s affairs. Rubino testified at grievance proceedings twice — once while Salvatore Pro-venzano was president of Local 560 and once while Sciarra was president. The critical issue in Rubino’s testimony was whether “past practices” in NEMF’s relationship with Local 560 justified NEMF’s deviations from the NMFA. When Provenzano was president and was vigorously pressing grievance claims against NEMF, Rubino testified that no such past practices had occurred, thereby advancing Provenzano’s desire to punish NEMF. After Sciarra had become Local 560’s president, however, and the Genovese Family was trying to appease Shevell, Rubino testified extensively that there had been' past practices and gave numerous details. See Local 560, 754 F.Supp. at 404; Local 560, 694 F.Supp. at 1180-81. The district court found that this evidence “tend[s] to confirm that Sciarra was implementing Ianiello’s and Andretta’s instructions.” Local 560, 754 F.Supp. at 404.
Based on these three pieces of evidence, the district court concluded that Sciarra was following instructions from the Ge-novese Family about NEMF in order 1) to prevent disclosure of past criminal dealings between the company and Genovese Family members affiliated with Local 560 and 2) to preserve the improper relationship between the local and NEMF. Id.
3. Sciarra’s Retention of Corrupt Officials
The district court also found that Sciar-ra’s decisions with regard to the administration of the welfare and benefit funds of Local 560 demonstrate that he was still under the influence of the Genovese Family. Two instances of conduct were relevant to the district court’s decision. First, Sciarra declined to remove Marvin Zalk from the position of Administrator of the Local 560 Welfare Plans despite Zalk’s 1983 conviction for obstruction of justice with regard to the Local 560 Dental Plan and despite the district court’s clear finding in the first proceeding that Zalk had long been involved in the Provenzano Group’s efforts to use Local 560 and its benefit funds for organized crime purposes. See Local 560, 581 F.Supp. at 285. Sciarra attempts to justify this decision on the grounds that Zalk was an effective administrator, but the district court found that the Zalk appointment was evidence that Sciarra remained under the influence of the Genovese Family after 1984.
Second, Sciarra voted to extend a lucrative contract with the law firm of Citrino, Balsam, and DiBiasi to provide legal services to union members despite strong evidence that the firm’s services were valueless to the membership of Local 560 and despite evidence that some of the law firm’s members were corrupt. The firm had been retained in the late 1970s by another local, which subsequently merged into Local 560. After the merger, the legal services plan provided services only for those who had formerly been members of the old local. In mid-1984, however, the leadership of Local 560 sought to expand the legal services plan to provide coverage for all members of Local 560. Sciarra, acting as a member of the Executive Board, helped create this plan despite the fact that Citrino, Balsam and DiBiasi had never accounted for any of the $500,000 that had been paid to them previously and despite the indictment of partner Thomas DiBiasi on bank fraud charges.
The Executive Board also approved a $50,000 “advance” for DiBiasi, which was never formally accounted for. Additionally, the firm’s managing partner, L. William Balsam, was suspended from the practice of law in January 1985. Nevertheless, Sci-arra, acting as a trustee of the Legal Services Plan, voted to give the firm a new three-year contract in April 1985. The district court concluded that these actions “must be viewed as corroborative of Sciar-ra’s... continued participation in the Ge-novese Family conspiracy to maintain control of Local 560 in violation of RICO.” Local 560, 694 F.Supp. at 1184.
4. Evidence Based on Sciarra’s Service as a Business Agent in 1989 and 1990
The district court also relied on Sciarra’s service as a business agent for Local 560 in 1989-90 to demonstrate his domination by the Genovese Family and the continued danger to Local 560. The district court found that the elected leaders of Local 560 in 1989 and 1990, Daniel Sciarra and Mark Sheridan, were leaders in name only. The district court found that Michael Sciarra was able to use his position as business agent to dominate the local’s affairs, which, in turn, placed Local 560 under the influence of the Genovese Family. The court further found that Sciarra was exercising control both over the affairs of the local and over the administration of Local 560’s benefit and pension funds.
In reaching its conclusion, the district court relied heavily on videotapes of union meetings at which Sciarra spoke. The court’s opinion details the enormous deference that the membership accorded Sciarra when speaking and his role in running the meetings. See Local 560, 736 F.Supp. at 607-10. The court concluded from observation of the tapes that they were “further evidence of Michael Sciarra’s determination to dominate both the Local itself and also the benefit funds.” Id. at 611-12.
The court also found that Sciarra attempted to become a fund trustee of the Local 560 pension and welfare funds, and that, but for the continued presence of the Trustee Edwin Stier, the Executive Board would have appointed him to such a position. The court found that at Executive Board meetings, Daniel Sciarra sought access for his brother to a trustee position. Despite the admonitions of Trustee Stier, members of the Executive Board continued to attempt to appoint Michael Sciarra to a trustee position. Robert Marra, one of the fund trustees, testified that he and two other employee fund trustees stood ready to step aside as trustees to provide room for Michael Sciarra as a fund trustee. The district court concluded that this behavior further evidenced influence by the Ge-novese Family.
Finally, the court also concluded, based on Sciarra’s own testimony, that Sciarra was still meeting with members of the Ge-novese Family. Sciarra himself admitted that he met with a driver for the Genovese Family, Jimmy Ida, at least seven times between 1987 and 1989. Additionally, surveillance revealed that Sciarra met with a caporegime in the Genovese Family, Stephen Andretta, at a diner during 1990. The district court inferred from this that Sciarra was receiving instructions about how to conduct the affairs of Local 560 to the Genovese Family’s benefit.
C. Summary
From all of the evidence, the district court concluded:
As long as Michael Sciarra holds any position within Local 560 he will be able through his forceful and dominating personality, through his hold on a large and vocal segment of the membership and by virtue of the inexperience and subservience of the present officers and Board members to dominate and control the Local. His continued presence presents a Hobson’s choice. Either the court trusteeship will have to be continued indefinitely to prevent renewal of organized crime or else the trusteeship can be terminated with the likely result that once again organized crime will assert its influence.
Local 560, 736 F.Supp. at 612. Consequently, the court entered the injunction barring Sciarra from attempting to influence the affairs of Local 560. See page 324. Both Sciarra and Local 560 appeal, alleging numerous errors in the district court’s decision. We consider Sciarra’s arguments first.
II. SCIARRA’S PROCEDURAL OBJECTIONS
Sciarra raises a number of procedural objections to the government’s effort to obtain a broader injunction against him. Primarily, his arguments derive from the fact that no complaint was ever filed against him in the present proceedings seeking to bar him from all efforts to influence the union. Although he acknowledges that a complaint was filed against him and the other Local 560 defendants in 1982, he contends that that action terminated as of March 16, 1984, the date the initial injunction was entered against them.
We begin by acknowledging that the procedure that the government followed for commencing this portion of the action against Sciarra was, indeed, unusual. On July 18,1988, the government filed an “Application for Additional Relief” with the district court. Ten days later, after a hearing, the government sought leave to have the Application treated as an Amended Supplemental Complaint, which the district court granted pursuant to Rule 15(d). The court did so because, in the language of FRCP 15(a), it felt that “justice so require^].”
Sciarra objects to the district court’s permitting amendment of the original complaint in an action that had already terminated. For the government to seek additional relief, according to Sciarra, it was required to file an entirely new complaint. Sciarra’s argument is bolstered by our statement in an earlier appeal in the Local 560 litigation that Sciarra and Sheridan were no longer parties to the litigation:
[W]e conclude that [Sciarra and Sheridan] are, at this point, only non-party witnesses to an investigation, rather than parties to an actual case or controversy designed to adjudicate their substantive rights.
United States v. Sciarra, 851 F.2d 621, 630 (3d Cir.1988).
Sciarra argues that this procedural defect requires dismissal of the suit against him for three reasons. First, he asserts that there is no Article III case or controversy because, under FRCP 3, a case can only be commenced by the filing of an action. Second, he submits that there is no personal jurisdiction over him because no summons and complaint were ever served on him. See FRCP 4. Third, he contends that the March 16, 1984 order barred additional relief under the principle of res judicata. See United States v. Athlone Industries, 746 F.2d 977, 983 and 983 n. 4 (3d Cir.1984).
Whatever the merits of these arguments, we are foreclosed from considering them by the law of the case. In the prior appeal, United States v. Local 560, 865 F.2d 253 (3d Cir.1988), Sciarra appealed from the entry of a preliminary injunction that barred him from running in the election for president of the Local 560 Executive Board. The preliminary injunction was entered pursuant to the government’s Application for Additional Relief, subsequently modified to become an amended and supplemental complaint. On appeal, Sciarra pressed precisely the same arguments about procedural defectiveness that he presses here. In affirming (by judgment order), we necessarily held that the district court had properly allowed the Application for Amended Relief to serve as an amendment to the original complaint.
When an appellate court decides a legal issue, that decision governs all subsequent proceedings in the same case. See Devex v. General Motors, 857 F.2d 197, 199-200 (3d Cir.1988). This rule promotes the “judicial system’s interest in finality and in efficient administration.” Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir.1982) (citations omitted). Had we found any merit in any of the three arguments just mentioned — that no case or controversy existed, that the court lacked personal jurisdiction over Sciarra, or that this claim for injunctive relief was precluded by the res judicata effect of the prior injunction — we would have been compelled to vacate the preliminary injunction entered by the district court. The first two arguments are jurisdictional, and, regardless of the merits, the absence of either subject matter or personal jurisdiction would have compelled us to dismiss the case. The third argument, concerning res judicata, if correct, would have precluded both preliminary and permanent relief, and also would have required dismissal of the case. By affirming, we rejected those arguments, all actually pressed, on the merits, and our decision is the law of the case.
Sciarra attempts to avoid the preclusive effect of our affirmance by pointing out that we merely affirmed the grant of a preliminary injunction. He notes that a decision on the merits to grant (or to affirm the grant of) a preliminary injunction does not constitute the law of the case. That is, in subsequently deciding whether permanent relief should issue, the court is free to reconsider the merits of the case. See, for example, William G. Wilcox D. O., P. C. v. United States, 888 F.2d 1111, 1113 (6th Cir.1989); Golden State Transit Corp. v
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_respond1_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.
BLACK et al. v. UNITED STATES.
Circuit Court of Appeals, Sixth Circuit.
June 30, 1925.
No. 4312.
1. Criminal law <§=l 114(1) — Errors not shown by Record cannot be reviewed.
Claimed errors, not appearing from the record, cannot be considered by the appellate court.
2. Criminal law <§=720(5) — Statement of district attorney held not prejudicial error.
Where a witness for the prosecution, who. was then in jail serving a sentence, testified that he had not been promised any leniency because of his testimony, a statement by the district attorney that he would recommend that the time of the witness be cut down held not prejudicial error.
3. Criminal lav/ <§=901 — Motion for directed verdict waived by introduction of evidence.
A motion by defendant for directed verdict at the close of the government’s evidence is waived by the introduction of evidence by defendant.
In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon. Hieks, Judge.
Criminal prosecution by the United States against W. P. Black and Roxie Cook. Judgment of conviction, and defendants bring error.
Affirmed.
Certiorari denied 46 S. Ct. 25, 70 L. Ed.
S. E. N. Moore, of Knoxville, Tenn., for plaintiffs in error.
Geo. C. Taylor, U. S. Atty., of Knoxville, Tenn.
Before DONAHUE and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
PER CURIAM.
In reference to the first and second assignments of error and the claim made in the brief for plaintiff in error, but not assigned as error in the original petition, that defendant was not in court when sentence was imposed, it is sufficient to say that this court cannot consider claimed errors not exhibited by the record.
A witness offered by the government had been theretofore convicted of one or more offenses and sentenced by the District Court to a term or terms in jail. He testified on cross-examination : That he was still in jail serving such sentence, and that “nobody came down there and told me I could have a little time off if I would testify about Black. * * * They didn’t tell me they would make it a little easier on me. I wasn’t looking for any time off.” It was not prejudicial error for the district attorney to state, after the witness had so testified: “I will say to you I am going to recommend that his time he cut down.”
An assignment of error that no evidence was offered tending to prove that the offense charged was a second offense must be overrated, where it appears that during the trial of the cause counsel for the accused, in his presence, admitted in open court that the accused had theretofore been convicted of a like offense.
Where, at the conchision of the government’s evidence, the defendant moves the court for a directed verdict, and the motion is overruled and exception noted, the error, if any, is waived by the introduction of further evidence on behalf of the defendant.
The verdict and judgment in this case are fully sustained by substantial evidence.
Judgment 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_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 assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration 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.
Enrique Caciedo ESCOBAR, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 90-2904.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1991.
Decided June 4, 1991.
A. Frank Johns, Jr., argued, Booth, Harrington, Johns & Campbell, Greensboro, N.C., for petitioner.
Lori Lynn Scialabba, argued, Stuart M. Gerson, Asst. Atty. Gen., David J. Kline, Asst. Director, Civ.Div., U.S. Dept, of Justice, Washington, D.C., for respondent.
Before SPROUSE and WILKINSON, Circuit Judges, and ELLIS, District Judge for the Eastern District of Virginia, sitting by designation.
ELLIS, District Judge:
This appeal presents the question, unresolved in this circuit, whether the prevailing party against the government in a deportation proceeding is entitled to an award of attorney’s fees under the Equal Access to Justice Act (“EAJA” or “the Act”), 5 U.S.C. § 504. We join several circuits in concluding that such an award is not authorized. In essence, we conclude that the EAJA allows appeals only from fee determinations in adversary adjudications “under [5 U.S.C.] section 554” of the Administrative Procedure Act (“APA”), and that deportation proceedings are not adjudications “under” § 554 of the APA. Accordingly, we dismiss this appeal.
I.
Enrique Escobar-Caicedo is a thirty six year-old native and citizen of Colombia. He entered this country lawfully as an immigrant in September 1965. He has continuously resided here since then.
In the spring of 1973, Escobar was arrested and charged with conspiracy to possess cocaine. At the time, he was under the age of twenty one. In 1974, he pled guilty to the charge and was sentenced to twelve months imprisonment with the execution of all but two (2) months of the sentence suspended. He served the two (2) months and an additional three (3) years of probation. The Immigration and Naturalization Service (“INS”) did not detain him at the time- of his plea or sentence. Three years later, the conviction was set aside pursuant to then-existing law governing the issuance of certificates setting aside the convictions of youthful offenders. See 18 U.S.C. § 5021, repealed 98 Pub.L. 473 (1984). The genesis of this matter is, in large measure, attributable to the parties’ failure in a timely manner to establish the setting aside of the conviction in the deportation proceeding record.
As noted, the INS took no action against Escobar in 1974, at the time of his plea or sentence. Not until June 1979, after Esco-bar had sought replacement of his Form 1-151, did the INS seek the issuance of a show cause order on the ground that Esco-bar’s 1974 conviction rendered him subject to deportation pursuant to 8 U.S.C. § 1252. The show cause order issued and a hearing was set for December 20, 1979. Escobar, who by then had moved with his family from New York to North Carolina, returned to New York for the hearing. At the hearing, Escobar was found deportable, but the file reflects that he applied for a waiver pursuant to 8 U.S.C. § 1182(c) and that his file was then forwarded within the INS for review. Nothing happened thereafter for almost five years. Then, in 1984, the INS sent Escobar a new notice of hearing to his old New York address. In 1987, another hearing notice was sent to the stale New York address. Escobar did not receive either of these notices.
In 1989, Escobar was incarcerated in North Carolina for civil contempt. This apparently occurred as a result of a dispute he had with his then estranged wife. While incarcerated in March 1989, Escobar was served with an INS warrant for his detainer and arrest based on the 1979 show cause order, which in turn was based on Escobar’s 1974 federal misdemeanor conviction as a juvenile. He was taken into custody by the INS, which set a $25,000 bond for his release. At a hearing later in March, Escobar’s counsel stated she was prepared to proceed on the issue of bond redetermination, but not on Escobar’s § 1182(c) waiver request. The matter was continued for a full hearing in April. At that hearing, Escobar’s counsel withdrew the waiver request, but requested a continuance to seek expungement of Escobar’s conviction. The request was granted, but Escobar’s counsel failed by the deadline date to submit any evidence that the conviction was subject to expungement or had been expunged. The parties dispute whether a further continuance was requested. In any event, on June 1,1989, the immigration judge issued a decision stating that Escobar should be deported and denying a bond reduction request. Escobar appealed this decision to the Board of Immigration Appeals (“BIA”), which remanded the bond redetermination order to the immigration judge to make certain required findings. At the subsequent bond redeter-mination hearing, Escobar’s counsel suggested that Escobar’s conviction may already have been expunged. Once this fact was verified, the INS requested the BIA to reopen and terminate the deportation proceedings against Escobar. On October 24, 1989, the BIA granted this request.
One month later, Escobar, by counsel, filed a motion for attorney’s fees under the EAJA with the Executive Office of Immigration Review. The motion was referred to the immigration judge, who denied it. Escobar’s counsel then advised that he intended the fee request to be made to the BIA, which then also denied the request, noting that the Attorney General “has determined that immigration proceedings do not come within the scope of the EAJA.”
This appeal followed.
II.
We are presented with a question of statutory interpretation. With such questions, it is axiomatic that the “starting point ... is always ‘the language [of the statute] itself.’ ” United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986), quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). Thus, the starting point in determining whether the EAJA applies to deportation proceedings is section 504(a)(1) of the Act, which provides that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and expenses incurred by that party in connection with that proceeding_” 5 U.S.C. § 504(a)(1) (emphasis added). And according to section 504(b)(1)(C) of the Act, “ ‘adversary adjudication’ means (i) an adjudication under Section 55j of this title [the Administrative Procedure Act] in which the position of the United States is represented by counsel or otherwise_” (Emhpasis added.) Therefore, whether the EAJA’s fee award provision applies to deportation proceedings turns on whether such proceedings are adjudications “under” the APA. We conclude they are not.
The first step in the interpretive effort is to ascertain whether the language in issue has a plain and ordinary meaning, for there is a strong presumption “that the legislative purpose is expressed by the ordinary meaning of the [statutory] words used.” American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). Indeed, this inquiry may end the interpretive effort, for “when ... the terms of a statute [are] unambiguous, judicial inquiry is complete, except “in ‘rare and exceptional circumstances.’ ” Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (citations omitted); United States v. Lund, 853 F.2d 242, 245 (4th Cir.1988).
In our view, the phrase “under Section 554 [of the APA]” has a plain and ordinary meaning. It means “governed by” or “subject to” section 554 of the APA. Contrary to Escobar’s contention, it does not mean “as defined by” or “related or akin to” the APA. Such a meaning for the phrase would be strained and unusual. Given our conclusion as to the phrase’s plain meaning, it follows that INS deportation proceedings do not fall within the EAJA’s fee award provision, for it has long been settled that such proceedings are not subject to or governed by the APA. See Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (deportation proceedings governed solely and exclusively by regulations promulgated under the Immigration and Naturalization Act, although APA served as a model for such regulations); see also Giambanco v. INS, 531 F.2d 141, 144 (3d Cir.1976); Cisternas-Estay v. INS, 531 F.2d 155, 158-59 (3d Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 127 (1976); Ho Chung Tsao v. INS, 538 F.2d 667, 669 (5th Cir.1976) (per curiam), cert. denied, 430 U.S. 906, 97 S.Ct. 1176, 51 L.Ed.2d 582 (1977). In sum, we conclude that the plain meaning of the EAJA fee award provision compels the con-elusion that the EAJA does not apply to INS deportation proceedings.
In reaching this conclusion, we join the Third, Fifth, Eleventh and D.C. Circuits, each of which has squarely decided this issue. See Clarke v. INS, 904 F.2d 172 (3d Cir.1990); Hodge v. U.S. Department of Justice, INS, 929 F.2d 153 (5th Cir.1991); Ardestani v. U.S. Dept. of Justice, 904 F.2d 1505 (11th Cir.1990), cert. granted, — U.S. -, 111 S.Ct. 1101, 113 L.Ed.2d 212 (1991); Full Gospel Portland Church v. Thornburgh, 927 F.2d 628 (D.C. Cir.1991) (per curiam). As the opinions of Judge Fay for the Eleventh Circuit and Chief Judge Higginbotham for the Third persuasively demonstrate, this conclusion is fully consistent with the pertinent legislative history. See Ardestani, 904 F.2d at 1510-13; Clarke, 904 F.2d at 175-77; see also Hodge, 929 F.2d at 157. Also persuasively demonstrated in these decisions is the propriety of limiting the EAJA phrase “under section 554 of [the APA]” to its plain meaning of “governed by,” such limitation being commanded not just by the well-established plain meaning rule, but also by the principle that waivers of sovereign immunity, which is what an expansion of the EAJA fee award provision amounts to, must be strictly construed in favor of the sovereign. See Ardestani, 904 F.2d at 1509-10; Clarke, 904 F.2d at 176; Hodge, 929 F.2d at 158; see also Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983) (waiver of sovereign immunity “must be ‘construed strictly in favor of the sovereign’ ” and not “ ‘enlarge[d] ... beyond what the language requires.’ ” (Internal citations omitted.)
Yet another factor supporting our reading of the EAJA fee award provision is that Congress, apparently quite aware of the provision’s limited scope, has expanded the definition of “adversary adjudications” in two instances previously considered to be outside the EAJA’s scope. In 1985, Congress overruled Fidelity Const. Co. v. United States, 700 F.2d 1379 (Fed.Cir.), cert, denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983), by amending § 504(b)(1)(C) to add specific proceedings under the Contract Disputes Act of 1978, 41 U.S.C. § 605. See H.R.Rep. No. 120 (part 1), 99th Cong., 1st Sess. 15, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 144. Next, in 1986 Congress amended the same EAJA section to add proceedings under the Program Fraud Civil Remedies Act, 31 U.S.C. § 3801, to the list of “adversary adjudications” eligible for EAJA fee awards. While not conclusive on the question at bar, these amendments reflect Congress’ awareness that the scope of the EAJA fee award provision is limited to “adversary adjudications,” i.e., those “under” or governed by the APA. This history teaches that the question whether INS deportation proceedings are to come within the EAJA fee award provision is one properly committed to Congress.
While we join three circuits in the conclusion we reach today, it is necessary to note, as Escobar correctly points out, that one circuit has reached the contrary conclusion. In Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc), the Ninth Circuit held that the EAJA applies to INS deportation proceedings. In reaching this result, the Ninth Circuit concluded that the statutory term “under” was ambiguous and that policy considerations reflected in the legislative history warranted giving the term an expansive reading. Specifically, the Ninth Circuit found that “under” meant “as defined by,” which, as it happened, was essentially the same language as that used in a 1980 House Conference report to describe an “adversary adjudication” under the EAJA. We disagree. Instead, we find convincing the extensive criticism of Esco-bar Ruiz found in Clarke and Ardestani and in Owens v. Brock, 860 F.2d 1363 (6th Cir.1988), a Sixth Circuit decision holding that the EAJA fee award provision does not apply to Federal Employee Compensation Act proceedings because such proceedings are not “under” or governed by the APA. In Owens, Chief Judge Engel described as “ephemeral” the bit of legislative history on which Escobar Ruiz is based. The D.C. Circuit has also criticized Escobar Ruiz. In St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446 (D.C.Cir. 1989), the D.C. Circuit held that the EAJA fee award provision does not apply to a proceeding challenging a Department of Energy price regulation remedial order. In reaching this result, the D.C. Circuit panel rejected the Escobar Ruiz analysis and result. The D.C. Circuit found no ambiguity in the phrase “under section 554 [of the APA]” and no warrant in the legislative history for an expansive reading of the phrase, especially in light of the rule that doubts about the scope of a waiver of sovereign immunity should be resolved in favor of the government. See 890 F.2d at 449-51.
Escobar Ruiz rests, it seems, on the expressed concern about difficulties unrepresented aliens face in INS deportation proceedings. We are not unsympathetic to these concerns, but they cannot legitimately serve to justify stretching statutory language beyond its plain meaning. Congress drew a “bright line” between those proceedings in which fees may be awarded under the EAJA and those not so covered. See St. Louis Fuel & Supply Co., 890 F.2d at 451. INS deportation proceedings fall on the non-EAJA side of this bright line. Only Congress, if it chooses, can change this.
Accordingly, we affirm the BIA’s conclusion that the EAJA fee award provision has no application to INS deportation proceedings.
DISMISSED.
. Section 1182(c) confers discretion on the Attorney General under certain circumstances to admit aliens convicted of drug offenses,
. There is no dispute that deportation proceedings meet the other aspects of the “adversary adjudication" definition. They are proceedings in which “the position of the United States is represented by counsel or otherwise.” 5 U.S.C. § 504(b)(l)(C)(i).
.Also significant is that everywhere the term "under" appears elsewhere in EAJA, it can have no other meaning but "subject to” or “governed by." See 5 U.S.C. § 504(a)(2), (c)(2), (d); see also St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446, 450 (D.C.Cir.1989).
.The EAJA renders the United States liable for attorney's fees which it would otherwise not owe. See Spencer v. NLRB, 712 F.2d 539, 544 (D.C.Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
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.
Christopher STONE, Plaintiff-Appellant, v. Arthur AGNOS, et al., Defendants-Appellees.
No. 91-15206.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 9, 1992.
Decided April 3, 1992.
Richard A. Canatella, San Francisco, Cal., for plaintiff-appellant.
G. Scott Emblidge, Deputy City Atty., San Francisco, Cal., for defendants-appel-lees.
Before: NOONAN, RYMER and TROTT, Circuit Judges.
NOONAN, Circuit Judge:
Christopher Stone brought an action against Arthur Agnos, Mayor of San Francisco; Frank Jordan, Chief of Police of San Francisco; and the City and County of San Francisco (the City) alleging that the defendants violated his constitutional rights by his arrest and confiscation of his property. The district court granted summary judgment for the defendants. We affirm.
BACKGROUND
According to Stone’s declaration, the following are .the facts of the case:
Stone was a homeless person living on the streets of San Francisco, making a living as a street musician. In April 1990 he became “the Homeless Task Force Coordinator,” i.e. an apparently self-appointed spokesman for homeless persons, speaking for six evenings in April on KGO TV in opposition to Mayor Agnos’ homeless policy-
Stone lived in a tent at Civic Center Plaza, a public square owned by the city. One evening in April two San Francisco police officers seized his tent and took it away in a police vehicle. The officers told Stone that Mayor Agnos had “directed the immediate removal of tents of homeless people from the plaza.”
On the morning of July 6, 1990, police arrived in force at the plaza and, pursuant to earlier notices, told the persons who slept in the plaza that they must leave it. Stone told the police that the shelters were full and there was no place to go. The police insisted he leave. When the media arrived he made a public statement in opposition to the mayor’s homeless policy. He continued to refuse to leave. His personal property was then seized, including a guitar and case, bedding, clothes, toiletries, food preparation items, radio, cash, jewelry, books, and papers. He was also arrested and jailed for four days. “Much” of the property “was destroyed.” The criminal case against him was later dismissed.
THE SUIT
Stone sued the defendants alleging that Mayor Agnos and Chief Jordan “deliberately and intentionally conspired” to violate his right to privacy and to assemble, associate and express his views in support of the homeless in violation of the First Amendment to the United States Constitution; that these defendants also deliberately and intentionally conspired to violate his right to be secure in person and property against unreasonable seizure and arrest in violation of the Fourth Amendment; and that the defendants also deliberately and intentionally conspired to deprive him of liberty and property in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Stone alleged that this conspiracy, conducted under color of state law, violated 42 U.S.C. § 1983 (1988) and 42 U.S.C. § 1985 (1988). He also alleged violations of the California Constitution.
The defendants submitted the declaration of Police Captain Dennis Martel stating that he arrested Stone on July 6, 1990, after Stone had been advised four times to leave the Civic Center area and had over a period of IV2 hours refused to do so. Martel further declared that Stone’s property had been confiscated but not destroyed. He further declared that he had made the decision to have Stone arrested and that “neither Mayor Agnos nor Chief Frank Jordan had any role in the decision to arrest Mr. Stone.”
The district court granted summary judgment for the defendants. Stone appeals.
ANALYSIS
Stone first argues that his arrest violated the First Amendment because it was a suppression of his right of free speech. He contends that his sleeping in the park as well as his communications to the media were expressions protected by the First Amendment; that his sleeping in a public place “dramatized” the plight of the homeless.
Stone appears to make two First Amendment claims: that he was arrested in retaliation for his speech, and that the expressiveness of his conduct renders the statute invalid as applied. As to the first, Stone has produced not the slightest evidence that his arrest by Captain Martel was for any communication made by him or that his arrest was ordered by Mayor Ag-nos and Chief Jordan. Stone’s continued presence in the plaza was a violation of California Penal Code § 647(i) (West 1988) which makes it a misdemeanor to lodge in any place, whether public or private, without the permission of the owner. As far as the record shows, Martel alone decided to arrest him for this crime.
Stone’s as-applied attack relies on Texas v. Johnson, 491 U.S. 397, 402-04, 109 S.Ct. 2533, 2538-39, 105 L.Ed.2d 342 (1989). Although sleeping would seem to be the antithesis of speaking, we need not determine whether Stone’s conduct was a form of expression. To meet Johnson’s state-interest prong, Stone argues that the city’s interest in maintaining its parks in attractive condition “is simply not implicated,” id., at 407, 109 S.Ct. at 2541, by unpermit-ted camping. This contention is wrong. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984). The as-applied attack fails.
Second, Stone argues that his arrest was a violation of the Fourth Amendment. This argument supposes that he was arrested for exercising his right of free speech. The argument fails with his failure to produce evidence to substantiate his free speech claim and his failure to implicate either the mayor or the police chief.
Stone, additionally, contends that the destruction of his property violated the Fourteenth Amendment. Accepting for the purposes of summary judgment that much of his property was destroyed, we find no evidence that it was destroyed in violation of the Fourteenth Amendment. He asserts no facts showing that the police behaved unreasonably. To sustain the claim he must show that the taking of the property was unreasonable. Mere negligence of the police would not violate the due process clause, and he would have no federal claim for such negligence if it occurred. Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir.1986), disapproved on other grounds, Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989). Nor does Stone make any showing whatsoever that the mayor or the police chief effected the destruction, which Stone concedes was contrary to city policy.
AFFIRMED.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_respond1_8_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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
WOODHOUSE v. BURLING et al.
No. 6203.
United States Court of Appeals for the District of Columbia.
Argued Jan. 9, 1935.
Decided Feb. 25, 1935.
Raymond M. Hudson, of Washington, D. C., for appellant.
Wm. Merrick Parker and Edward B. Burling, both of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
MARTIN, Chief Justice.
An appeal from an order of the lower court dismissing an amended bill of complaint filed by appellant as plaintiff below.
The amended bill of complaint named as defendants the following parties, to wit, Washington Airport, Inc., National Aviation Corporation, Edward B. Burling, Washington Air Terminals Corporation, Federal Aviation Corporation, H. Rozier Dulany, trustee, Arthur Herbert, trustee, and National Airport Corporation. The prayer of the bill was for a discovery, the appointment of a receiver, an injunction, a judgment, and general relief.
Motions were filed by defendants Burling and Dulany, respectively, praying that the bill be dismissed on the ground, among others, that the averments contained in it were insufficient to constitute a valid cause of action. The lower court sustained the motions and dismissed the amended bill of complaint, from which order the plaintiff has taken this appeal.
In the bill the plaintiff alleges in substance and effect that the defendant Washington Airport, Inc., was indebted to plaintiff upon various claims for damages in the sum of $1,425,500 then due and unpaid; that the debtor corporation was insolvent and that a judgment had been entered against it in the circuit court for Arlington county, Va., on May 16, 1930, in favor of the Airports Corporation of the United States, Inc., in the sum of $661; and that an execution on the judgment had been issued and returned “nulla bona” by the sheriff of Arlington county.
Plaintiff alleges that the corporation on June 30, 1933, was the owner of a certain described tract of real estate situate in the state of Virginia, and that on July 17, 1933, the defendants Dulany and Burke, as trustees, acting under a certain deed of trust, sold the same at public auction to defendant Edward B. Burling for the sum of $432,000, which sum was about $2,000 more than the secured debts and costs. Plaintiff does not deny the validity of the deed of trust under which the sale was made nor the amount of the indebtedness thereby secured, nor the regularity of the sale, nevertheless, plaintiff alleges that the sale was made “for and on behalf of the defendant, National Aviation Corporation, and those allied with it in its schemes to prevent just creditors of the Washington Airport, Inc., from being able to collect what is due.them from the Washington Airport, Inc., assets, and the said Burling has, or will, convey his rights therein to the said National Aviation Corporation.”
Plaintiff also alleges that on July 14, 1933, the Washington Airport, Inc., was the owner of certain other described real estate situate in the state of Virginia, and that on July 31, 1933, the defendants Dulany and Herbert, as trustees under a deed of trust, sold the same at public auction to Ludington Bros, at the price of $174,500, being'the exact amount of the first trust which the Ludingtons held upon the property. The plaintiff does not deny the amount or validity of the indebtedness secured by the trust deed, nor the regularity of the proceedings of the trustees thereunder, but alleges that defendant National Aviation Corporation, being desirous of purchasing the property, attempted and succeeded in preventing plaintiff and other just creditors of Washington Airport, Inc., particularly the holders of the second trust upon the property, from bidding at the sale. The plaintiff alleges that the trustees who sold the several tracts under the trust deeds have “brought into the District of Columbia” the money which they have received from the sale of the property, or will receive when the balance of the purchase price is paid to them, and that there is no way for the coürts of the state of Virginia to reach the same. The plaintiff therefore prays that the court appoint a receiver to collect from the trustees the sum of- $432,-000, the purchase price of the property sold on July 17, 1933, and’the sum of $174,500 for the purchase price of that sold on July 31, 1933; that the plaintiff be granted a judgment against Washington Airport, Inc., the National Aviation Corporation, and other defendants in the sum of $1,430,600; that the receiver be required to divide the proceeds of the several sales between the plaintiff and other creditors of Washington Airport, Inc.; that the defendants be enjoined and restrained from removing the money or any property of the Washington Airport, Inc., from the District of Columbia; and that the defendants be required to make discovery of and state any and all contracts and understandings between them in relation to the transactions above set out.
We think that the lower court was right in sustaining the motion to dismiss the plaintiff’s bill for want of merit. The plaintiff is an unsecured creditor of the Washington Airport, Inc., and his claim has never been reduced to judgment. It is established by the authorities that a receiver for the property of an alleged debtor will not be appointed by a court of equity at the instance of a creditor whose claim has not been reduced to judgment. This requirement is not satisfied by the fact that another and different creditor has secured a judgment against the debtor and failed to collect the same by execution. Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 14 S. Ct. 127, 37 L. Ed. 1113; Pusey & Jones v. Hanssen, 261 U. S. 491, 497, 43 S. Ct. 454, 67 L. Ed. 763.
Moreover, the allegations contained in the bill of complaint do not disclose any fraudulent conduct of the part of the Washington Airport, Inc., the alleged debtor, nor any effort on its part to defeat the collection of the plaintiff’s claims by ordinary legal procedure, nor that its assets are being concealed or dissipated. The only actual conduct which is set out in the bill as fraudulent is the effort of the National Aviation Corporation to prevent bidding at the trustees’ sale of the second tract of land. It is not-alleged that this corporation is insolvent, and, moreover, it appears that it has not been served with process in this case, and, consequently, that no valid order or judgment can be entered against it herein.
It is alleged in the bill that Dulany, trustee, is a nonresident of Virginia and that under the Virginia law a nonresident cannot act as such trustee, and, consequently that his acts in that capacity were illegal. It is not denied, however, that his co-trustees in the several deeds of trust were residents of Virginia; and we find no authority for the statement that a deed of trust made in that state to two trustees, one being a resident of Virginia and the other being a nonresident, would be invalid. It seems that such a claim is impliedly contradicted by the provisions of section 5400a of the Virginia Code of 1930. Moreover, it should be remembered that the courts of Virginia have jurisdiction of questions of title and legal procedure in reference to real estate located in that state, and those courts were open to the plaintiff and all questions relating to the validity of the deeds of trust should have been litigated there. It may be noted, moreover, that the plaintiff in the present suit seeks the appointment of a receiver to collect and disburse the funds accruing from the sale of the property made by the trustees under the deeds of trust which plaintiff at the same time claims were invalid.
The decree of the lower court is affirmed with costs.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_appnonp
|
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 "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Joseph L. KANALEY, an Infant over Fourteen Years of age, by Leola P. Kanaley, his duly appointed Guardian ad Litem, Plaintiff-Appellant, v. DELAWARE, LACKAWANNA & WESTERN RAILROAD CO., Inc., Defendant-Appellee.
No. 17, Docket 25430.
United States Court of Appeals Second Circuit.
Argued Oct. 15, 1959.
Decided Nov. 12, 1959.
Gordon H. Mahley, Syracuse, N. Y. (H. O. Beach, Oswego, N. Y., Rice & Auser, Fulton, N. Y., on the brief), for plaintiff-appellant.
Raymond Hackbarth, Syracuse, N. Y. (Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, N. Y., on the brief), for defendant-appellee.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.
PER CURIAM.
Plaintiff, an infant over the age of fourteen years, by his guardian appeals from a judgment dismissing the complaint at the close of plaintiff’s case for failure to prove negligence and failure to prove plaintiff free from contributory-negligence. The action originally commenced in the Supreme Court for Oswego County (New York) was removed to the federal court (28 U.S.C.A. §§ 1332, 1441).
There is virtually no dispute as to the material facts. On April 6, 1957, plaintiff, with two friends, was walking along a public highway in the City of Fulton, New York. A freight train, operated by defendant, was slowly crossing the street. One of plaintiff’s friends jumped on one of the cars; plaintiff jumped on a ladder on the car directly behind. Plaintiff was holding a basketball under his right arm. As the car passed the freight house, plaintiff came into contact with the building causing him to jump to a ledge on the side of the building. Still holding the basketball, he attempted to leap again onto the ear but fell to the tracks where the wheels ran over his right arm necessitating amputation.
Under the law of New York (applicable here) plaintiff was a trespasser to whom defendant would be liable only for wanton and reckless conduct or, as sometimes phrased, an affirmative act of negligence. This rule has been consistently adhered to by the New York courts, the exception being situations in which the defendants were guilty of some affirmative act of negligence, such as, threatening gestures causing children to jump from moving trains or permitting deceptive traps (e. g., a flimsy wooden cover over a deep hole) to present an appearance of solid support.
In a most recent decision, Lo Casto v. Long Is. R. Co., 6 N.Y.2d 470, 190 N.Y.S.2d 366, 160 N.E.2d 846, July 8, 1959, the New York Court of Appeals reaffirmed the law applicable here, saying: “The controlling law was restated in Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 158, 71 N.E.2d 447, 449, as follows: ‘ “Toward mere trespassers or bare licensees the rule is well settled that the only duty owing to them by the owner or oecupier of land is to abstain from inflicting intentional, wanton or willful injuries unless he maintains some hidden engine of destruction” ’. The Carbone opinion cites many other holdings and the existence of the rule is not really disputed” (6 N.Y.2d at page 474, 190 N.Y.S.2d at page 369, 160 N.E.2d at page 848.
Accepting all the facts established here by plaintiff, the trial court correctly determined that they were insufficient to establish a cause of action in plaintiff’s favor. This decision is in conformity with New York law, well summarized in Gloshinsky v. Bergen Milk Transportation Co., 1938, 279 N.Y. 54, at page 59, 17 N.E.2d 766, at page 768: “There are no conflicting inferences to be drawn from the testimony. But a single determination is possible from the facts and that is that the boy exercised no care at all for his own safety, and under those circumstances, as a matter of law, the plaintiffs failed to sustain the burden resting upon them to show that he was free from negligence contributing to his injuries,” citing Wendell v. N. Y. C. & H. R. R. Co., 1883, 91 N.Y. 420, and Camarado v. New York State Railways, 1928, 247 N.Y. 111, 159 N.E. 879.
The judgment is affirmed.
. Lo Casto v. Long Is. R. R. Co., 1959, 6 N.Y.2d 470, 190 N.Y.S.2d 366, 160 N.E. 2d 846; Van Houten v. New York, N. H. & H. R. Co., 1956, 2 N.Y.2d 739, 157 N.Y.S.2d 376, 138 N.E.2d 737; Van Houten v. Long Island Railroad Co., 2nd Dept. 1952, 279 App.Div. 1099, 112 N.Y.S.2d 678; Carbone v. Mackchil Realty Corp., 1946, 296 N.Y. 154, 71 N.E.2d 447; Ralff v. Long Island Railroad Co., 2nd Dept. 1943, 266 App.Div. 794, 41 N.Y.S.2d 620, affirmed 1944, 292 N.Y. 656, 55 N.E.2d 518; Morse v. Buffalo Tank Corp., 1939, 280 N.Y. 110, 19 N.E.2d 981; Walsh v. Fitchburg R. Co., 1895, 145 N.Y. 301, 39 N.E. 1068, 27 L.R.A. 724.
. Clark v. N. Y., L. E. & W. R. Co., 1889, 113 N.Y. 670, 21 N.E. 1116; McCann v. Sixth Ave. R. Co., 1889, 117 N.Y. 505, 23 N.E. 164; Ansteth v. Buffalo Railway Co., 1895, 145 N.Y. 210, 39 N.E. 708.
. Le Roux v. State, 1954, 307 N.Y. 397, 121 N.E.2d 386, 46 A.L.R.2d 1063; Mayer v. Temple Properties, 1954, 307 N.Y. 559, 122 N.E.2d 909.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
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songer_usc2
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18
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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. Ronald C. BRECHTEL and Phillip H. Gattuso, Defendants-Appellants.
No. 92-3342.
United States Court of Appeals, Fifth Circuit.
Aug. 2, 1993.
Rehearing Denied Sept. 21, 1993.
Frank G. DeSalvo, New Orleans, LA, for Ronald C. Brechtel.
Patrick Fanning, New Orleans, LA, for Phillip H. Gattuso.
Peter Strasser, Herbert W. Mondros, Asst. U.S. Attys., and Harry Rosenberg, U.S. Atty., New Orleans, LA, for the U.S.
Before POLITZ, Chief Judge, KING and DUHÉ, Circuit Judges.
PER CURIAM:
Ronald Brechtel and Phillip Gattuso appeal their convictions of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006. Finding no reversible error in either Brechtel’s or Gattuso’s convictions, we affirm.
Background
Brechtel and Gattuso served as directors of Enterprise Federal Savings & Loan (EFS & L). Brechtel also served as secretary of the board and as a member of the loan committee. In addition to their involvement with EFS & L, Brechtel and Gattuso had interests in the Saulet and Ames Farm partnerships, two real estate development concerns owning land in Jefferson Parish, Louisiana. Gattuso’s cousin Roy Gattuso managed those partnerships.
In 1984 and 1985, Gattuso executed documents by which Saulet and Ames Farm granted options on parcels of land. Stavros Amitsis, holder of the Saulet option, had exhausted his credit line and could not secure financing at EFS & L to purchase this property. Nikitas Pepis and Lynn Yao — two Am-itsis associates — sought EFS & L loans with which to purchase the Saulet and Ames Farm parcels. Marilyn Ortalano, an EFS & L loan officer, informed the loan committee that if the loans were approved, Amitsis ultimately would receive the proceeds thereof. She also informed them that Robert Evans, EFS & L’s board chairman, wanted the Yao and Pepis loans approved to keep Amitsis afloat. Brechtel urged the loan committee to approve the transactions.
On December 18, 1984, the $420,000 Pepis loan received committee approval. At a January 11, 1985 closing, Saulet sold its parcels to G & N Enterprises, a company recently acquired from Amitsis by Paul Baltas and Lloyd Broussard. G & N paid Saulet $52,-500 cash and executed a note for the balance of the $350,000 purchase price, securing the credit portion with a mortgage on the property. Brechtel and Gattuso both signed the instrument transferring the Saulet parcels to G & N. Later that day, as planned, Pepis took title to the parcels in a second closing and assumed the note executed by G & N. EFS & L received a second mortgage on the Saulet parcels as security for the Pepis loan. Six days later, the full EFS & L board approved the Pepis loan. Loan committee notes circulated at the board meeting reflected that the Saulet property secured that loan. Although board minutes for the January 17, 1985 meeting note the presence of Brechtel and Gattuso, the minutes reflect no disclosure by either of them of their interest in the Pepis transaction. Gattuso testified that he informed Evans of his and Brechtel’s interest and that both abstained from the vote of approval.
In March 1985, the loan committee approved the $500,000 Yao transaction. The record contains no minutes reflecting approval of this loan by the full EFS & L board. On April 1, 1985, Yao took title to the Ames Farm parcel, giving in return cash and a note secured by the property. Brechtel and Gat-tuso attended.that closing and signed the act of sale. EFS & L received a second mortgage on the Ames Farm property.
By 1986, Pepis and Yao were experiencing difficulty meeting their obligations under the Saulet and Ames Farm notes. On April 22, 1986, to avoid a foreclosure EFS & L purchased the first mortgage on the Saulet parcels. On April 29, 1986, Gattuso and Bre-chtel were advised by letter from Roy Gattu-so of Yao’s delinquency on the Ames Farm note and that Yao would seek to refinance his debt to the partnership through EFS & L. Roy Gattuso also advised that if Yao failed to obtain supplemental financing through EFS & L, foreclosure proceedings would be initiated. On June 19,1986, the EFS & L board approved a $1.8 million loan permitting Yao to work out his financial problems. Brechtel, but not Gattuso, attended the June 19 meeting. Brechtel testified that he disclosed his and Gattuso’s interest in the Yao loan and abstained from voting on it. The minutes from the June 19 meeting and the testimony of two other board members belie Brechtel’s statement.
The grand jury indicted Brechtel and Gat-tuso on four counts of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006. Counts one and two related to the initial loans by EFS & L to Pepis and Yao, respectively; count three to EFS & L’s buyout of the Pepis mortgage, and count four to EFS & L’s final loan to Yao. The district court denied motions by both Brechtel and Gattuso to dismiss counts of the indictment as multi-plieitous. The jury acquitted Brechtel and found Gattuso guilty on count one, found both defendants guilty on counts two and four, and acquitted both defendants on count three. Brechtel and Gattuso unsuccessfully moved for judgment of acquittal and for new trial. The district court sentenced both defendants to one year of halfway house confinement, payment of incarceration costs and the statutory assessments, and restitution to the Resolution Trust Corporation. Brechtel and Gattuso timely appealed.
Analysis
On appeal, both defendants challenge the sufficiency of the evidence and contend that the district court improperly permitted testimony regarding their violation of civil banking regulations. Brechtel further challenges the district court’s refusal to: (1) dismiss counts of the indictment as multiplicitous, (2) permit his presentation of habit evidence, and (3) grant him a new trial. He also maintains that the statute of limitations barred his prosecution.
1. Multiplicity
Brechtel first faults the district court’s denial of his motion to dismiss portions of the indictment on multiplicity grounds. An indictment is multiplicitous if it charges a single offense in multiple counts, thus raising the potential for multiple punishment for the same offense, implicating the fifth amendment double jeopardy clause. Legislative intent typically is dispositive of the multiplicity inquiry. When considering an indictment charging separate offenses arising from a series of related acts, we must determine whether Congress intended separate punishments. Where a defendant suffers convictions on multiplicitous counts, we must remand so that the government may dismiss improper charges and the trial court may resentence the defendant. Like other determinations regarding double jeopardy, we review district court rulings on multiplicity claims de novo.
Brechtel suggests that the two loans to Yao constituted individual steps in an overarching scheme to procure improper benefit from EFS & L through sale of the Ames Farm parcel. By charging the two Yao transactions as separate offenses, Brechtel argues that the government improperly splintered a single offense. He claims that in United States v. Lemons, we found that multiplicity tainted an indictment under identical circumstances. We are not persuaded.
Lemons involved a bank-fraud prosecution under 18 U.S.C. § 1344. The indictment charged Lemons with separate violations of § 1344 for each of eight occasions on which he indirectly received or caused the bank to disburse funds. We noted that, although Lemons improperly received and caused disbursement of bank funds on several occasions, his acts constituted a single execution of a fraudulent scheme. We thus concluded, relying on the language of § 1344, that the indictment charged a single violation in multiple counts.
Because of the differences between 18 U.S.C. § 1006 and § 1344 Lemons is not dispositive of the case at bar. Rather than punishing “execut[ion]... of a scheme or artifice to defraud,” 18 U.S.C. § 1006 punishes bank officials.who “reeeive[ ]... any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of... [the] institution.” This language suggests intent to punish receipt of improper benefit from individual transactions, rather than from overarching schemes. Brechtel violated § 1006 each time he benefited from an extension of credit to Yao. The district court properly rejected his contrary contention.
2. Limitations Period
Brechtel next asserts that the five-year limitations period of 18 U.S.C. § 3282 bars his prosecution. He urges that the ex post facto clause of Article I, § 9, cl. 3 of the Constitution precludes application to him of the ten-year limitations period provided for by 18 U.S.C. § 3293. This argument mis-perceives the law.
Recent Supreme Court teachings reject the proposition that retroactive legislation violates the ex post facto clause merely because it adversely affects the position of criminal defendants. Rather, that clause prohibits only enactment of statutes which: (1) punish as a crime an act previously committed which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive one charged with a crime of any defense available according to law at the time when the act was committed. Only statutes withdrawing defenses related to the definition of the crime, or to the matters which a defendant might plead as justification or excuse fall within the latter group. Plainly, extension of the limitations period neither criminalizes previously innocent conduct nor enhances the punishment for an existing crime. Further, while § 3293 deprives Brechtel of the five-year limitations period in effect when the questioned transactions occurred, it did not deprive him of a defense within the meaning of the ex post facto clause. This contention lacks merit.
3. Habit Evidence
At trial, Brechtel sought to present testimony by his stock broker James Man-gum. Through Mangum’s testimony, Brechtel sought to establish that, as a matter of habit, he took an entirely passive role in his real estate and stock investments, permitting advisors to act on his behalf without inquiry into the substance of the transactions they proposed. Mangum’s testimony, Brechtel asserts, would have tended to negate the mental state required for conviction under § 1006 by demonstrating ignorance regarding his interests in the Ames Farm and Saulet parcels. The district court excluded Mangum’s testimony under Fed.R.Evid. 403, finding any probative value it might have had substantially outweighed by its likely tendency to confuse jurors.
Relying on our opinion in United States v. Riley, Brechtel argues that the district court erred in refusing to permit Mangum’s testimony. The defendant in Riley, indicted for misapplication of bank funds under 18 U.S.C. § 656, sought to introduce evidence that the institution routinely engaged in transactions similar to those underlying the charges against him. Because the trial court’s exclusion of that evidence effectively prevented Riley from presenting his defense—that he believed the transactions proper and hence lacked fraudulent intent— we reversed the conviction. Brechtel contends that Riley mandates reversal in the instant ease. We do not agree.
Mangum’s proffered testimony did not involve Brechtel’s business relationship with real estate advisor Sam Gattuso. Further, it involved Brechtel’s standard operating procedure for stock transactions, which involve substantially less formality than the real estate transactions here at issue. Thus, Man-gum’s proffered testimony had at best tenuous relevance and, even if relevant, would have had far less probative force than the evidence at issue in Riley. The chain of analogies required to ground relevance of this evidence might well have rendered it confusing to the jury. Well-settled rubrics consign rulings on admissibility of evidence to sound trial court discretion, and require particular appellate court deference to rulings under Fed.R.Evid. 403 based on the risk of jury confusion. While the discretion which district courts enjoy does not extend to the exclusion of crucial relevant evidence establishing a valid defense, the questionable relevance, low probative value and potential for jury confusion presented by Mangum’s testimony distinguish this case from Riley and persuade that its exclusion did not amount to an abuse of discretion.
1/.. Evidence of Regulatory Violations
Both Brechtel and Gattuso claim that the district court erred in permitting testimony by Ronald Hall, an examiner with the Office of Thrift Supervision. Over defense objection, Hall testified that regulations require directors to disclose any interest they may have in transactions under consideration by the bank and abstain from deliberations concerning such transactions, and prohibit loans in which bank officials have an interest unless made directly to the official in question. They argue that this testimony improperly suggested criminal liability flowing from a civil violation, and further improperly suggested the criminal intent required to convict them under § 1006. Mindful that an abuse of discretion standard governs our review of evidentiary rulings, we find this argument lacks adequate persuasive force.
In United States v. Christo, relied upon by Brechtel and Gattuso, we reviewed a prosecution for misapplication of bank funds in which the government presented evidence of civil banking regulations which limited the amount of credit which the bank could extend to the defendant. Finding this evidence irrelevant to the issue of criminal liability, we held that in view of prosecution arguments and “the whole tenor of the trial,” jury instructions permitting a conviction based upon the civil violation constituted plain error. Later cases have understood Christo as being principally concerned with bootstrapping of civil violations into criminal liability, and have permitted use of civil violation evidence in criminal prosecutions for more limited purposes. Further, we and our colleagues in other circuits have recognized the value of limiting instructions in attenuating any improper effect of such evidence when used for a permissible purpose.
The ease at bar differs substantially from Christo. Testimony regarding civil regulations constituted only a minor portion of Hall’s testimony. To the extent that he mentioned disclosure requirements, they permissibly assisted the jury in understanding the significance of EFS & L’s board minutes and management disclosures to thrift authorities. Hall’s statement concerning the prohibition on interested director transactions properly tended to demonstrate the defendants’ motive for nondisclosure. The government did not argue that any civil regulatory violation by Brechtel and Gattuso could alone give rise to criminal liability, and the district court admonished the jury that “[a] violation of banking regulations in and of itself does not amount to criminal conduct under federal law. The government must prove the elements of the offense beyond a reasonable doubt.” We cannot conclude that Hall’s testimony regarding civil regulations “impermis-sibly infectfed] the very purpose for which the trial was being conducted.” The district court did not abuse its discretion in permitting Hall’s testimony.
5.'Sufficiency of the Evidence
Both Brechtel and Gattuso challenge the sufficiency of the evidence supporting their convictions. In order to convict a defendant of improper participation in bank transactions under § 1006, the government must demonstrate: (1) the defendant’s connection with a protected institution; (2) direct or indirect receipt of some benefit from a bank transaction; and (3) intent to defraud. Brechtel and Gattuso claim only that the government adduced insufficient evidence of their criminal intent.
We have long recognized the § 1006 insider participation provision as a typical conflict of interests prohibition. Thus, a fiduciary who benefits or causes loss to the bank by knowingly subordinating the institution’s interests to his own in a transaction for which he has responsibility acts with the “intent to defraud” required by § 1006. As direct evidence of mental state is seldom available, the government may demonstrate that element of a § 1006 violation by circumstantial evidence. An inference of intent to defraud arises where a responsible bank insider acts to procure a transaction which he knows will benefit him, without disclosing his interest therein.
Well-settled law governs our sufficiency inquiry. We must view the evidence, giving due regard to the trier’s credibility calls, and draw all reasonable inferences which favor the verdict. If the evidence so viewed would permit a rational jury to find all elements of the crime beyond a reasonable doubt, we must affirm the conviction. The evidence need not exclude all hypotheses of innocence. Applying these standards, we find the evidence sufficient to support the convictions in this case.
a. Brechtel
Special Agent David Lyons of the F.B.I. testified that Brechtel acknowledged an expectation that Yao would use proceeds of both EFS & L loans for purchase of the Ames Farm parcel. The jury properly could discredit Brechtel’s denial on the witness stand that he ever had such an understanding. Marilyn Ortalano’s testimony permitted a jury conclusion that Brechtel knowingly failed to disclose his interest in the initial Yao transaction and acted to procure its approval by the loan committee. Such evidence adequately supports Brechtel’s conviction on count two.
With regard to count four, Roy Gat-tuso’s April 29 letter and Breehtel’s claim that he abstained from voting on the Yao workout loan reflect Brechtel’s knowledge of his interest in that transaction on June 19, the date it obtained board approval. Discrediting Brechtel’s contrary testimony, the jury reasonably could have inferred from the absence of contrary mention in the June 19, 1986 board minutes that Brechtel failed to disclose his interest in the latter Yao transaction and participated in its consideration. Brechtel’s conviction on count four finds ample support in the record.
b. Gattuso
EFS & L minutes and Gattuso’s own testimony indicate his presence at the meeting during which the board ratified the initial Pepis loan. Gattuso’s insistence on the witness stand that he informed Bob Evans of his interest in that transaction and that he and Brechtel left the January 17 meeting during its consideration permitted the jury to conclude that Gattuso.knew at that time of his interest in the initial Pepis loan. Discrediting Gattuso’s contrary assertion, the jury could infer from absence of any mention in the minutes regarding Gattuso’s departure from the meeting, abstention from voting on the Pepis transaction, or disclosure of an interest in that transaction, that he did none of those things. Sufficient evidence supports Gattuso’s conviction on count one.
Although a closer case than count one, we likewise believe that constitutionally sufficient evidence supports Gattuso’s conviction on the second count of the indictment. The key issue here is whether there was sufficient evidence of Gattuso’s intent to defraud EFS & L regarding the first of the two loans made by EFS & L to Yao on March 19, 1985. As discussed above, Yao paid over the proceeds from that loan to the partnership in which Gattuso and Brechtel possessed an interest.
At trial, the government’s theory regarding Gattuso’s guilt on the second count was that he attended the March 19, 1985 board meeting and even voted to approve the first Yao loan, while both knowing of his indirect pecuniary interest in the loan and without disclosing that interest to the board. We agree with the government that a section 1006 violation is clearly established when a member of a federally insured financial institution’s board fails to disclose a direct or indirect pecuniary interest in a loan being approved by the board. The only question regarding Gattuso’s conviction on count two is whether there was sufficient evidence from which a rational jury could find beyond a reasonable doubt that Gattuse both knew about the first Yao loan before it was finalized and failed adequately to disclose his interest in the loan to responsible persons at EFS & L.
Because there is little question that no disclosure occurred by Gattuso or Brechtel regarding the partnership’s interest in the first Yao loan, our chief inquiry is whether the evidence at trial, which was wholly circumstantial, would permit a rational jury to find beyond a reasonable doubt that Gattuso knew that EFS & L was making a loan to Yao. At the outset, we observe that three larger circumstances militate in favor of such a finding: first, a jury could rationally conclude that a sophisticated real estate broker such as Gattuso—who had been in the real estate business for over three decades— would not likely have been in the dark about important business transactions directly affecting a partnership in which he had a significant interest. This is particularly true in view of the substantial evidence that Gattuso himself, on behalf of the partnership, signed the documents closing the sale of the Ames property to Yao contemporaneously with the finalization of the first loan to Yao.
Second, we observe that there was substantial evidence that Gattuso’s co-defendant and business partner, Brechtel, and Gattuso’s cousin and attorney for the partnership, Roy Gattuso, were both well aware that Yao was in the process of obtaining financing from EFS & L for the purpose of purchasing the Ames Farm property in early 1985. Although the fact that one’s close business associates were privy to information highly relevant to a joint business concern does' not by itself support a finding that the information was passed on to the other partner, certainly it is probative and, when combined with other evidence, would permit an inference that communication occurred.
Third, we observe that the timing of Yao’s exercise of the option on the Ames property and Yao’s obtaining the loan, which occurred in early 1985, were roughly contemporaneous with Gattuso’s involvement in the Pepis loan scheme. Although the two real estate transactions were distinct, the government presented substantial evidence that Nikitas Pepis and Lynn Yao were each affiliated with Stavros Amitsis. A jury could rationally infer that Pepis and Yao acted in conjunction. That is, in view of the overlapping timing between the Pepis and Yao transactions and corresponding loans and the debtors’ common link to Amitsis, a rational jury could believe that the Yao loan and the Pepis loan were part of a common plan or scheme to defraud EFS & L. Cf. Fed.R.Evid. 404(b). Accordingly, a rational jury could infer that Gattuso’s guilty knowledge regarding the Pepis loan extended to the Yao loan.
Yet such larger circumstantial factors, by themselves, would not permit a rational jury to find Gattuso’s guilt beyond a reasonable doubt. Thus, an examination of the government’s other evidence is in order. Of particular importance is Government Exhibit 20, a two-page document entitled “Executive Committee Meeting of March 7, 1985, Loans for Ratification,” which lists a dozen or so loans to be later ratified by the board of directors. Among them is a $500,000 line of credit to Lynn Yao. Although a notation on the document states, “SECURED BY VARIOUS PROPERTIES” — and thus makes no specific mention of the Ames Property — the closing of the sale of the Ames Property occurred less than two weeks later, on April 1, 1985. We believe that, assuming Gattuso saw this document, a rational jury could believe that Gattuso knew that the notation about Yao must have concerned a loan for the- sale of the Ames Property.
At issue, however, is whether that document was seen by Gattuso at the March 19, 1985 board meeting. Admittedly, the two pages of typed minutes from the meeting make no reference to the ratification of the executive committee’s loans (including Yao’s) on March 7,1985. Moreover, Gattuso denied knowing that Yao was seeking financing for the purchase of the Ames Property until after the loan was finalized. Two pieces of evidence belie his claim. First, it is clear that Gattuso attended the board meetings in early 1985, including the March 1985 meeting, and there is no indication that he made disclosure of his interest in the Yao loan or even abstained from voting in any ratification of committee-approved loans. Second, on the top of page two of the document entitled “Loans for Ratification” — which included the Yao loan — appears the date “March 19, 1985.” This is evidence, albeit not conclusive evidence, from which a rational jury could infer that the board of directors did indeed ratify the executive committee loans (including Yao’s) at the March 19, 1985 board meeting. Furthermore, in Gattuso’s own trial testimony, he stated that he believed that in the spring of 1985 the board of directors was required to ratify all committee-approved loans.
We additionally observe that the $500,000 loan to Yao in the spring of 1985 was in the form of a line of credit. The promissory note and collateral mortgage note executed by Yao in favor of EFS & L were signed on April 1, 1985. According to the express terms of the collateral mortgage note, “Lender has this date agreed to make a loan... to Borrower up to the amount of Five Hundred Thousand and No/100 ($500,000) DOLLARS....” Thus, Yao’s actual line of credit was formally opened on April 1,1985. Notably, the date that the Ames Property sale closed was also April 1,1985. It is undisputed that Phillip Gattuso attended the closing; indeed, his signature appears on the documentation memorializing the closing. Because Gattuso signed documentation at the closing, a jury could rationally infer that he knew that the sale of the property was being financed by EFS & L. Thus, even if Gattu-so did not vote to ratify the line of credit at the March 19, 1985 board meeting and only discovered the loan afterwards, a rational jury could infer that Gattuso would have discovered that Enterprise was financing the loan on April 1, 1985. Thus, even as late as that date, Gattuso still could have informed the bank of his conflict and prevented the consummation of the transaction involving EFS & L funds.
In sum, although admittedly a close case, we conclude that a rational jury could find beyond a reasonable doubt, in view of the totality of circumstantial evidence, that Gattuso, with the intent to defraud, knowingly “share[d] in or receive[d] directly or indirectly... money... through” EFS & L. 18 U.S.C. § 1006.
With respect to count four, we also believe that a rational jury could find beyond a reasonable doubt that Gattuso intended to defraud EFS & L in violation of 18 U.S.C. § 1006. Admittedly, there is no evidence that Gattuso was present at the June 19, 1986 board meeting where Yao's second loan was approved. There is, however, direct evidence that would permit a rational jury to conclude beyond a reasonable doubt that Phillip Gattuso did know, as early as April of 1986, that Yao was seeking supplemental financing from EFS & L in order to stave off the partnership from foreclosing on the Ames Property. In particular, the government offered a copy of a letter written by Roy Gattuso to his cousin Phillip in April 1986 explicitly stating that Yao would be attempting to work out additional financing from EFS & L in order to preclude a foreclosure by the partnership. The government adequately established that Phillip Gattuso did not disclose his interest in the second Yao loan following receipt of that letter. The government also offered undisputed evidence that Phillip Gattuso received a check that was directly traceable to the ultimate loan proceeds from the second Yao loan. Thus, the loan proceeds from the second Yao loan did not merely benefit the partnership in which Phillip Gattuso possessed an interest, but benefitted Gattuso directly.
We hold that the government need not offer evidence that a board member such as Gattuso actually voted or otherwise engaged in affirmative conduct, in his capacity as a responsible bank official, to secure a loan in which he possessed a pecuniary interest. Rather, mere knowledge that such a loan is being obtained coupled with a failure to disclose his interest establishes a violation of 18 U.S.C. § 1006. A board member of a financial institution such as Gattuso is a classic fiduciary who owes the institution an affirmative duty to disclose all potentially substantial conflicts of interest. He cannot escape that duty simply by not attending the board meeting at which a transaction implicating those conflicts is approved while thereafter pocketing the proceeds.
6. New Trial Motion
In his final assignment of error, Brechtel essentially reiterates his previous points, asserting that at minimum they required the district court to grant his motion for new trial. The trial court’s superior vantage point on the weight and effect of evidence provides the basis for our review of its new trial rulings only for abuse of discretion. As Brechtel’s other assignments of error lack merit, we cannot conclude that the district court abused its discretion in denying his motion for new trial. This claim also lacks merit.
Conclusion
For the foregoing reasons, the convictions are AFFIRMED.
. As applicable here, 18 U.S.C. § 1006 provides:
[wjhoever, being an officer, agent or employee of or connected in any capacity with... any institution the accounts of which are insured by the Federal Savings and Loan Insurance CorporationL]... with intent to defraud the United States or... any corporation, institution, or association referred to in this section, participates or shares in or receives directly or indirectly any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of any such corporation, institution, or association, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.
The Crime Control Act of 1990, Pub.L. 101-647, § 2595(a)(4)(B), 104 Stat. 4907 (1990) substituted "institution, other than an insured bank (as defined in section 656), the accounts of which are insured by the Federal Deposit Insurance Corporation” for "institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation” in § 1006, reflecting absorption by the former agency of the latter. Congress also has amended the penalty provisions of § 1006 to provide for a maximum fine of $1,000,000 and a maximum prison term of 20 years. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, § 961(e), 103 Stat. 500 (1989).
. E.g., United States v. Lemons, 941 F.2d 309 (5th Cir.1991).
. E.g., id. (citing United States v. Swaim, 757 F.2d 1530 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985)).
. See Missouri v. Hunter, 459 U.S. 359, 365-69, 103 S.Ct. 673, 677-80, 74 L.Ed.2d 535 (1983) (where multiple punishments imposed in single prosecution, the double jeopardy inquiry is only whether legislature intended such multiple punishment).
. United States v. Heath, 970 F.2d 1397 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993); Lemons.
. See United States v. Vasquez-Rodriguez, 978 F.2d 867 (5th Cir.1992).
. 941 F.2d 309 (5th Cir.1991).
. Section 3282 provides "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”
. That clause, regulating the authority of Congress, provides "No Bill of Attainder or ex post facto Law shall be passed.”
. Congress expressly indicated that § 3293, adopted August 9, 1989, would apply to offenses committed before and for which the limitations period had not run as of its enactment. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, § 961(0(3), 103 Stat. 501 (1989).
. Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990).
. Id. at 41, 110 S.Ct. at 2718 (citing Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Pre-Youngblood jurisprudence suggested that statutes retroactively prejudicing "substantial rights” of criminal defendants also might violate the ex post facto clause. See, e.g., Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 964 n. 12, 67 L.Ed.2d 17 (1981). However, Youngblood makes clear that "substantial rights" language in earlier opinions does not expand the bases upon which a criminal defendant may premise an ex post facto challenge. Rather, only retroactive criminal statutes violating the principles set forth in Beazell and Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), implicate "substantial rights” for the purpose of ex post facto clause analysis. Youngblood, 497 U.S. at 46, 110 S.Ct. at 2721.
. Youngblood, 497 U.S. at 49-50, 110 S.Ct. at 2723.
. Our colleagues in other circuits have reached similar conclusions with regard to the retroactive application of § 3293. United States v. Taliaferro, 979 F.2d 1399 (10th Cir.1992); United States v. Knipp, 963 F.2d 839 (6th Cir.1992); United States v. Madia, 955 F.2d 538 (8th Cir.1992); see also United States ex rel. Massarella v. Elrod, 682 F.2d 688 (7th Cir.1982) (retroactive extension of unexpired limitations period does not violate ex post facto clause), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983); United States v. Richardson, 512 F.2d 105 (3d Cir.1975) (same) (dictum); Clements v. United States, 266 F.2d 397 (9th Cir.) (same), cert. denied, 359 U.S. 985, 79 S.Ct. 943, 3 L.Ed.2d 934 (1959); Falter v. United States, 23 F.2d 420 (2d Cir.) (same) (L. Hand, J.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). Of course, the instant case requires no decision concerning the propriety of legislation reviving criminal liability after lapse of the previously applicable limitations period.
. Brechtel concedes that Mangum did not advise him with regard to real estate investment. Brechtel sought to present Mangum’s testimony as a substitute for that of real estate advisor Sam Gattuso, who died prior to trial.
. The district court, in the alternative, excluded Mangum's testimony as irrelevant because it related to stock rather than real estate transactions.
. 550 F.2d 233 (5th Cir.1977).
. See United States v. Qaoud, 777 F.2d 1105 (6th Cir.1985) (evidence regarding defendant judge’s "general pattern” of refusing assistance to influence peddlers irrelevant and properly excluded in RICO prosecution where not crucial to defense), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 899 (1986).
. E.g., United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir.1989).
. United States v. Allibhai, 939 F.2d 244 (5th Cir.1991) (citing United States v. Edelman, 873 F.2d 791 (5th Cir.1989)), cert. denied, — U.S. -, 112 S.Ct. 967, 117 L.Ed.2d 133 (1992). We note that Riley did not involve exclusion of defense evidence on this basis.
. Riley.
. Compare United States v.
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:
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songer_direct1
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A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. 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.
BLACKMON v. LEE, Deputy Administrator, Civil Aeronautics Administration, et al.
No. 11590.
United States Court of Appeals District of Columbia Circuit.
Argued April 20, 1953.
Decided May 14, 1953.
See also 12 F.R.D. 411.
Mr. Claude L. Dawson, Washington, D. C., for appellant.
Mr. Oliver C. Biddle, Atty., Department of Justice, of the bar of the Supreme Court of New York, pro hac vice, by special leave of Court, with whom Mr. Charles M. Irelan, U. S. Atty. at the time the brief was filed, and Messrs. Edward H. Hickey and Joseph Kovner, Attys., Department of Justice, were on the brief, for appellees. Messrs. William R. Glendon, Asst. U. S. Atty., Joseph M. Howard, Asst. U. S. Atty. at the time the record was filed, and William E. Kirk, Jr., Asst. U. S. Atty. at the time the brief was filed, also entered appearances for appellees.
Before PROCTOR, BAZELON and FAHY, Circuit Judges.
FAHY, Circuit Judge.
The appellant, plaintiff in the District Court, sought a declaratory judgment that his removal from a civilian position in the Civil Aeronautics Administration, Department of Commerce, violated his rights as a veteran’s preference eligible, and restoration to his proper position. The ap-pellees in this court, defendants below, are departmental officials and members of the Civil Service Commission. They answered and also filed affidavits which, with the complaint itself, give in full the proceedings eventuating in appellant’s removal. No counter affidavit was filed and on motions of both appellant and appellees for summary judgment the court granted the motion of appellees and dismissed the complaint.
Concededly appellant was a veteran’s preference eligible. The removal proceedings therefore must be shown to have conformed with the provisions of Section 14 of the Veterans’ Preference Act, set forth in pertinent part in the margin. From the complaint, answer' and affidavits it clearly appears that the reasons for the proposed separation were given in writing, specifically and in detail, appellant was allowed a reasonable time for answering personally and in writing and for furnishing affidavits .in support of such answer, he availed himself of the right to answer, the administrative officer thereafter notified him of his removal, stating that the answer had been considered and was not deemed satisfactory, appeal was taken to the Civil Service Commission, being filed with the acting chief law officer, who after hearing affirmed the removal decision, appeal to the Board of Appeals and Review of the Civil Service Commission followed, with like result, and appellant then appealed to the full Board of the Civil Service Commissioners who also considered the case and reached the same conclusion. The procedural requirements of Section 14 were complied with during the appeal proceedings, which included extensive hearings.
Appellant’s principal contention is that nevertheless the proceedings were fatally defective in that under Section 14 he. could be discharged only “for such cause as will promote the efficiency of the service” and the original decision of removal did not include an explicit finding to that effect. The facts relevant to this contention are that the proposed reasons furnished in detail to appellant stated that his activities had impaired the efficient operation of the agency as a whole, he was advised that the reasons constitute “notification of proposed adverse action as required by Section 14 of the Veterans’ Preference Act of 1944, as amended”, that he could answer personally and in writing and furnish affidavits in support of his answer, and that “In the event that your answer is not satisfactory * * * you will be removed from the service or other appropriate action will be taken”. Thereafter he was formally notified of his removal by a document which stated that his answer had been considered and was not deemed satisfactory. On appeal the acting chief law officer of the Civil Service Commission, after hearings, ruled that the dismissal “was for such cause as will promote the efficiency of the service as provided in Section 14 of the Veterans’ Preference Act of 1944, as amended”. On further appeal the Civil Service Commission, upon consideration of the entire record, including further hearings before its Board of Appeals and Review, affirmed the decision of the acting chief law officer and also found that the separation was in the interest of promoting the efficiency of the service. Though all question might have been eliminated by more precision in the original notification of removal we think the foregoing demonstrates that the procedures which were followed complied in all substance with Section 14.
We do not discuss the merits of the removal except to say that under the limited judicial review permissible the District Court properly did not disturb the departmental decision. See Powell v. Brannan, 1952, 91 U.S.App.D.C. 16, 196 F.2d 871. See, also, Watson v. Pace, 1953, 92 U.S.App.D.C. —, 201 F.2d 713, adopting the opinion of District Judge Youngdahl reported at 101 F.Supp. 477 (D.C.D.C.1951).
We have considered other questions raised and find no reason to disagree with the judgment below.
Affirmed.
. “No permanent or indefinite preference eligible * * * shall be discharged * * * except for such cause as will promote the efficiency of the service and for reasons given in writing, and the person whose discharge * * * is sought shall have at least thirty days’ advance written notice * * * stating any and all reasons, specifically and in detail, for .any such proposed action; such preference eligible shall be allowed a reasonable time for answering the same personally and in writing, and for furnishing affidavits in support of such answer, and shall have the right to appeal to the Civil Service Commission from an adverse decision of the administrative officer so acting, such appeal to be made in writing within a reasonable length of time after the date of receipt of notice of such adverse decision: Provided, That such preference eligible shall have the right to make a personal appearance, or an appearance through a designated representative, in accordance with such reasonable rules and regulations as may be issued by the Civil Service Commission; after investigation and consideration of the evidence submitted, the Civil Service Commission shall submit its findings and recommendations to the proper administrative officer and shall send copies of the same to the appellant or to his designated representative, and it shall be mandatory for such administrative officer to take such corrective action as the Commission finally recommends * * Section 14, 58 Stat. 390 (1944), as amended, 61 Stat. 723 (1947), 5 U.S.C.A. § 863.
The result we reach would be no different under the provisions of 37 Stat. 555 (1912), as amended, 62 Stat. 354 (1948), 5 U.S.C.A. § 652.
. “ * * * Where there has been a substantial departure from applicable procedures, a misconstruction of governing legislation, or like error going to the heart of the administrative determination, a measure of judicial relief may on occasion be obtainable. But no such basis for relief has here been laid.” 91 U.S. App.D.C. at page 17, 196 F.2d at page 873.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_appel1_2_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 appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
UNITED STATES of America, by Griffin B. BELL, the Attorney General, on Behalf of F. Ray MARSHALL, the Secretary of Labor, and the Equal Employment Opportunity Commission, Plaintiffs-Appellees, v. ALLEGHENY-LUDLUM INDUSTRIES, INC., et al., Defendants-Appellees, United Steelworkers Justice Committee et al., Movants-Appellants.
No. 76-2717.
United States Court of Appeals, Fifth Circuit.
June 6, 1977.
Richard Kirschner, Miriam L. Gafni, Philadelphia, Pa., Peyton D. Bibb, Birmingham, Ala., for movants-appellants.
Robert T. Moore, Atty., Civil Rights Div., U. S. Dept, of Justice, Frederick S. Mittelman, Atty., E. E. 0. C., Washington, D. C., Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., Richard S. Ugelow, Atty., J. Stanley Pottinger, Asst. Atty. Gen., U. S. Dept, of Justice, Washington, D. C., Abner W. Sibal, Gen. Counsel, Washington, D. C., John C. Falkenberry, Birmingham, Ala., Bernard Kleiman, Chicago, 111., Carl Frankel, United Steelworkers of America, Pittsburgh, Pa., Adams, Baker & Clemon, Birmingham, Ala., for appellees.
Michael H. Gottesman, Washington, D. C., for Allegheny-Ludlum Ind., et al.
Jerome A. Cooper, Birmingham, Ala., for United Steelworkers of America.
James R. Forman, Jr., W. K. Murray, Birmingham, Ala., for U. S. Steel Corp.
Before WISDOM, GEE and FAY, Circuit Judges.
PER CURIAM:
This appeal considers the right of steelworkers to intervene in a Title VII employment discrimination action against their employers and union. Because the workers did not move to intervene in a timely fashion, we affirm the district court’s denial of their motion.
The United States, on behalf of the Secretary of Labor and the Equal Employment Opportunity Commission, filed an action against nine of the major steel producers and the United Steelworkers of America under Section 707 of Title VII of the Civil Rights Act of 1964, as amended. The complaint alleged (1) that the companies and union had and were engaged in a pattern or practice of employment discrimination on the basis of race, color, sex, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, and (2) that the companies had failed to comply with contractual obligations to the United States under Executive Order 11246, as amended, not to discriminate on the basis of race, color, sex, or national origin, and that the union had interfered with compliance by the companies with these contractual obligations and otherwise contributed to the companies’ non-compliance.
On April 12, 1974, the same day the complaints were formally filed, two consent decrees were entered by the district court. The first concerned employment practices involving both the steel companies and the union, and the second concerned practices under the exclusive control of the companies. The first decree (Consent Decree I) is the only one in issue in the present proceeding.
The provisions of Consent Decree I are designed to correct the continuing effects of past discriminatory hiring, initial assignment, promotion, and transfer practices. Their adequacy and legality, as well as that of other provisions of Consent Decrees I and II, were previously challenged by three organizations, four individuals, and six groups of plaintiffs. The district court found those challenges to be without merit, and an appeal was taken to this Court where that decision was affirmed.
A more complete history of this litigation is set forth in the Court’s opinion in United States v. Allegheny-Ludlum Industries, 5 Cir. 1975, 517 F.2d 826, cert. denied, 1976, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187, and, for purposes of this appeal, need not be repeated. In Allegheny Ludlum I the Court decided, inter alia, that the consent decrees were lawful and that the district court correctly denied intervention to the National Organization for Women.
The appellants, applicants for intervention, are the United Steelworkers Justice Committee and fifty employees in the steel industry who allege that they “have been adversely affected by the implementation of Consent Decree I”. The applicants seek, as did the appellants in Allegheny Ludlum I, to have Consent Decree I vacated and set aside.
The application for intervention, along with a counterclaim for declaratory and injunctive relief, was filed on January 29, 1975. At the time of filing, the appeal in Allegheny Ludlum I was pending before this Court. Trial Judge Pointer ruled that until this Court decided the pending appeal he did not have jurisdiction to consider the merits of the motion to intervene. On August 18, 1975, in Allegheny Ludlum I this Court affirmed the lawfulness of the consent decrees and otherwise upheld the decision of the district court.
By order dated March 22, 1976, the district court denied the motion for intervention because neither the Committee nor the individual applicants were entitled to intervention as of right under either Rule 24(a)(1) or 24(a)(2) of the Federal Rules of Civil Procedure. The district court held that the motion for intervention was not timely. The motion was filed nine months after the union and the companies reached the consent agreement with the EEOC and seven and a half months after the district court issued a judgment on the legality of the agreement.
We reject the steelworkers’ appeal principally on the basis of the decision of the district court and its careful procedural attempts- not to prejudice any rights asserted by the applicants for intervention.
“Timeliness . . . is to be determined by the Court in the exercise of its sound discretion; unless that discretion is abused the Court’s ruling will not be disturbed on review." NAACP v. New York, 1973, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648. See also McDonald v. E. J. Lavino Co., 5 Cir. 1970, 430 F.2d 1065. Here the trial judge did not abuse his discretion. Post-judgment intervention is rare. The applicants offered no compelling reason for waiting until seven and a half months after the judgment and six months after implementation of the decrees to file their motion. Intervention now for the purpose of challenging the consent agreement will prejudice the appellees by jeopardizing months of negotiations, causing substantial litigation expenses, and even more substantial expenses of implementation. The applicants knew of the consent agreement three days after the suit was filed; numerous other individuals and groups moved to intervene before the district court entered a judgment on the decrees. To allow the applicants to intervene now would disrupt carefully considered proceedings.
Because the district court correctly denied the motion to intervene as untimely under Rule 24(a), we do not reach the additional grounds on which the district court based its decision. The judgment is AFFIRMED.
. In order to avoid confusion with this appeal, the Court’s decision found at 517 F.2d 826, and the proceedings leading up to that decision, are referred to herein as Allegheny Ludlum I.
. The present applicants seek to void Consent Decree I because its implementation has allegedly affected their earnings and job opportunities adversely. The appellants in Allegheny Ludlum I sought to have the decree vacated because, in their opinion, it did not provide sufficient job opportunities and other relief to women and minorities.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_capric
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
EAGLE BROADCASTING COMPANY and WTVY, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Cosmos Broadcasting Corporation, Intervener.
No. 74-1409.
United States Court of Appeals, District of Columbia Circuit.
June 17, 1975.
Jack P. Blume and Arthur G. House, Washington, D. C., were on the briefs for Eagle Broadcasting Co.
Arthur H. Schroeder and William M. Barnard, Washington, D. C., were on the briefs for WTVY, Inc.
Ashton R. Hardy, Gen. Counsel, Joseph A. Marino, Associate Gen. Counsel, and John E. Ingle, Washington, D. C., Counsel, were on the brief for appellee.
William P. Sims, Jr., and Richard F. Swift, Washington, D. C., were on the brief for intervenor.
Before McGOWAN, ROBINSON and ROBB, Circuit Judges.
PER CURIAM:
The dispute in this case is among three television broadcasters: Cosmos of Montgomery, Alabama (a VHF broadcaster); Eagle of Columbus, Georgia (a UHF broadcaster); and WTVY of Dothan, Alabama (a VHF broadcaster). The first of these, Cosmos, has been granted FCC permission to move its transmission facilities some twelve miles east-southeast of their former site, and to increase the height of its antenna to roughly double its former size. The latter two, having opposed the grant, now seek direct review of the issuance of the construction permit.
Cosmos’s application was initially denied by the Hearing Examiner on the ground that the plan would have an adverse impact on UHF broadcasters, particularly Eagle. The Review Board disagreed with the Examiner in this respect, concluding that there would be only minimal impact on UHF competitors, and that this was outweighed by the substantial improvement in VHF service that the new facilities would achieve. The denial of approval for the plan was, however, affirmed by the Board on a different ground, namely, that Cosmos had not adequately shown that its expanded service would be responsive to community interests and needs, as required by Suburban Broadcasters, 30 FCC 1021 (1961), aff’d sub nom., Henry v. FCC, 112 U.S.App.D.C. 247, 302 F.2d 191 (1962).
After granting review of only this part of the Board’s decision, the Commission remanded the case to the Board in order to allow Cosmos to amend its Suburban showing in the light of the Commission’s newly-issued Primer on Ascertainment of Community Problems by Broadcast Applicants. 27 FCC 2d 650 (1971). Petitioners requested that on remand they also be allowed to update the record by adducing new evidence relevant to the UHF impact issue, but this request was denied and the Board’s adverse resolution of that issue was allowed to stand. After further evidentia-ry hearings on the Suburban issue, the Board resolved it in Cosmos’s favor and approved construction of the new antenna. The Commission this time upheld the Board, and this appeal followed. For the reasons stated below, we affirm.
Petitioners first attack the merits of the adverse finding with respect to the UHF impact of the proposed construction. As we have said before, the protection of UHF broadcasting is the Commission’s policy, not ours; and it is free to apply it in any way that is not arbitrary or capricious. WCOV, Inc. v. FCC, 150 U.S.App.D.C. 303, 464 F.2d 812, 815 (1972). We see no arbitrariness here. Petitioners claim that the Review Board, misinterpreting the Commission’s then-recent Mount Vernon decision, imposed “a new and • higher standard of proof” that the Commission, so it is alleged, later disavowed. In fact the Mount Vernon decision was upheld upon reconsideration, 22 FCC 2d 222 (1970), and we find no subsequent repudiation by the Commission of the language in it which was relied on by the Review Board, i. e., that requiring “some substantial specific impact on UHF.” See 17 RR 2d at 1630. In any event, it is not clear that the Review Board held petitioners even to that standard, since it found that in . this case “only minimal impact on UHF ha[d] been shown.” J.A. 54.
Petitioners’ second contention is that when it remanded the case for further proceedings on the Suburban issue, the Commission should have allowed the UHF impact issue to be reopened as well. It is true that a rehearing of particular issues may be made necessary by new and relevant evidence. See, e. g., WMOZ, Inc. v. FCC, 120 U.S.App.D.C. 103, 344 F.2d 197 (1965). But this is true only where the new evidence “might have gone far toward undermining the basis for the Commission’s conclusion.” Id. at 198. See also WEBR, Inc. v. FCC, 136 U.S.App.D.C. 316, 420 F.2d 158, 166 (1969). No description- has been offered of any new evidence that would “undermine” the Board’s UHF impact finding in this case; petitioners simply assert that the new evidence would be “harder” and therefore might undermine that finding. This is not enough to establish an abuse of the Commission’s discretion to consider the matter closed. Nor does the Commission appear to us to have been unfaithful to its own decision in Daily Telegraph Printing Co., 40 FCC 2d 109 (1973). It there remanded a construction permit proceeding for further evidence on UHF impact, but such a remand of the UHF issue (as opposed to some other issue in the case) was already required for other and stronger reasons.
Petitioners also claim that a remand of the UHF impact issue was required by the fact that Cosmos was given a second chance on an issue on which it had previously failed, i. e., the Suburban issue. They insist that the reopening of one issue made it expedient to reopen the other, and unfair not to do so. The short answer is that, to a busy agency, limited further proceedings are preferable to more extensive further proceedings, and that the agency is free to follow that preference where the claims for a second chance vary in strength as much as do those of Cosmos and petitioners in this case. Cosmos was permitted to supplement its showing of community needs because the question of what precisely was required of it in this respect had been a matter of some confusion that the issuance of the Commission’s Primer had only later dispelled. Petitioners have no claim of comparable merit.
Petitioners’ strongest claim is that the Commission has never given sufficient reasons for its denial of their request for a remand on the UHF impact issue. That request was first made in a “Petition for Reconsideration” of the Commission’s initial decision remanding on the Suburban issue but denying review on the UHF impact issue. This petition was denied on the ground that a Commission rule bars reconsideration of any denial of review for which reasons were not given, as they were not in this case. See 47 C.F.R. § 1.115(g) (1973). Petitioners then filed a request for waiver of the rule barring reconsideration. The Commission denied the request for waiver because petitioners had “not shown good cause for their request, [nor] made any significant showing affecting the merits of the actions taken in this proceeding.’’ (Emphasis added.) Charging that this response by the Commission is inadequate, petitioners point to the requirement of 47 U.S.C. § 405 (1970) that a denial by the Commission of a petition for rehearing be accompanied by “a concise statement of the reasons therefor.” See also 5 U.S.C. § 555(e) (1970); 47 C.F.R. § 1.106(j)(1978).
Reliance by the Commission on its own rule against reconsideration would in itself be a clearly inadequate reason for the refusal to rehear. The rule may have some justification where the summary denial of review reflects a Commission judgment that the appeal was frivolous, and where the request for rehearing is only a rehash of the same, frivolous arguments. But the fact that no reasons were thought necessary when the Commission first heard the case is no basis for rejecting a proffer of new evidence.
In this case, however, the Commission did not stand solely on its procedural rule. It added, albeit in an exiguous manner, that it saw nothing in what petitioners offered to unsettle its initial decision to deny review. In view of the weakness of the case for remand, but only for this reason, we think that what the Commission said here was enough.
Petitioners’ final claim is that the Commission erred in remanding to allow Cosmos to bring its Suburban showing into compliance with the Commission’s Primer. In so doing the Commission was extending to Cosmos a privilege generally available to applicants in pending cases. Petitioners object on the ground that Cosmos had put in only a “desultory” performance on the Suburban issue, and that this “stemmed from its indifference to the Commission’s requirements in this area — rather than from any uncertainty or confusion.”
The opinion of the Review Board reports, however, that Cosmos personally interviewed some thirty-seven community leaders and followed these up with a questionnaire mailed to some ninety-two. That there was no gross delinquency on Cosmos’s part is suggested by the fact that the Hearing Examiner resolved the issue in Cosmos’s favor. Cosmos’s principal difficulty seems to have been that it assumed that, since it was merely extending its coverage to an area larger than but encompassing the area it already served, it need not propose any programming changes, but could rest on the appropriateness of its existing service to its old constituency. The Hearing Examiner agreed; the Review Board did not.
. It is the Commission’s policy to encourage the development of UHF stations by limiting the intrusion of VHF broadcasters into UHF service areas. See, e. g., Triangle Publications, Inc., 29 FCC 315 (1960), aff’d sub nom., Triangle Publications, Inc. v. FCC, 110 U.S.App.D.C. 214, 291 F.2d 342 (1961).
. New evidence is assertedly available principally because Eagle’s broadcast station, which was only proposed for construction at the time of Cosmos’s application, has since come into operation. This change assertedly makes available “hard evidence” of UHF impact in the place of the predictions and estimates which were of necessity made at the original hearing.
. Report and Order, VHF Television Broadcast Channel at Mount Vernon, Ill., 34 F.R. 18036; 17 RR 2d 1620 (1969).
. Section 405 of the Communications Act of 1934, 47 U.S.C. § 405 (1970), upon which petitioners rely, merely authorizes and does not require the Commission to grant rehearings to consider newly available evidence.
. The Review Board in Daily Telegraph had erroneously confined its UHF impact consideration to the impact on the complaining UHF station. It had also relied on post-record developments which were thought to require the scrutiny of another hearing. 40 FCC 2d at 110.
. Petitioners point again to the Commission’s Mount Vernon decision as introducing an uncertainty on the UHF impact issue which was only later removed by the Commission’s decision in WLCY — TV, Inc., 28 FCC 353 (1972). As already stated, however, we find no significant inconsistency in these decisions.
. Petitioners subsequently filed a second “Petition for Waiver and Extraordinary Relief’, again asking the Commission to reconsider its remand of only the Suburban issue, but this time adding its argument based on the Commission’s Daily Telegraph decision. This petition was ultimately denied by the Commission in the same order in which it denied review of the Board’s second and final resolution of the UHF impact issue. In refusing again to waive its rule against reconsideration, the Commission again stated that “the current petition presents no significant showing affecting the merits of the actions taken in this proceeding.” In a footnote, the Commission distinguished Daily Telegraph as a case in which “the considerations of administrative finality were not so compelling.”
. That the rule against reconsideration where no reasons have been given was not even intended to apply where new evidence is offered is suggested by the existence of a separate Commission rule governing petitions for reconsideration on the ground of new evidence. See 47 C.F.R. § 1.106(c) (1973).
. Similarly, the distinction of Daily Telegraph as a case in which the UHF impact issue was being reopened anyway seems to us sufficiently articulated in the statement that in that case “the considerations of administrative finality were not so compelling.” See note 7 supra.
. The Report and Order which accompanied the issuance of the Primer specified that applicants in pending hearings who were required to make Suburban showings would be given 90 days in which to amend those showings to bring them into compliance with the Primer. 27 FCC 2d at 680. The Commission has allowed such amendments even where the record has been closed and the case is before it for review. See Risner Broadcasting Inc., 28 FCC 2d 330 (1971). The Commission interpreted Cosmos’s request for a remand as an indication that it intended to make such an amendment.
. The Review Board further disagreed with the Trial Examiner’s failure to apply retroactively the strict standards of the Commission’s decision in Minshall Broadcasting Co., 11 FCC 796 (1968); J.A. 72-74.
Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc2sect
|
1112
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Alan Eugene REED, Appellant, v. UNITED STATES of America, Appellee.
No. 9107.
United States Court of Appeals Tenth Circuit.
May 23, 1967.
Martin C. Crawn, Kansas City, Kan., for appellant.
Newell A. George, Kansas City, Kan. (Benjamin E. Franklin, Kansas City, Kan., with him on brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.
MURRAH, Chief Judge.
Appellant, Alan Eugene Reed, and his co-defendant, ■ Ivan Daniel Neighbors, who has not appealed, were convicted by a jury on an information charging them with wilful and malicious murder upon United States lands in violation of 18 U.S.C. §§ 1111-1112. Appellant’s motion for new trial was denied, and he was sentenced to sixty years imprisonment.
On this appeal Reed has asserted three grounds of error: (1) insufficiency of the evidence to support a conviction;
(2) admittance into evidence of a knife purported to be the murder weapon; and
(3) failure to show a motive for committing the crime.
The Government’s case is concededly based upon circumstantial evidence — -there was no eye witness to the murder. But, even so, the Government’s case may very well be based upon circumstantial evidence. We view such evidence only to determine whether, believing the Government’s proof and disbelieving the defendant’s countervailing proof, the jury was justified in finding beyond a reasonable doubt that the defendant was guilty of the offense charged. See Jordan v. United States, 10 Cir., 370 F.2d 126; Williams v. United States, 10 Cir., 368 F.2d 972, 975; Real v. United States, 10 Cir., 326 F.2d 441, and cases cited.
The evidence tending to support the Government’s case reflects that Reed and Neighbors, both inmates at the Federal Penitentiary in Leavenworth, Kansas, had been friends for many years and were “fall partners”, i.e. they had been convicted of the same crime and were serving identical sentences; that since their confinement at Leavenworth, they had been constant companions even though Neighbors lived in cellhouse B while Reed lived in cellhouse C. On October 29, 1965, Grady Armstrong, a prisoner in B cellhouse, died of cut and stab wounds inflicted upon him in his cell. Sixteen witnesses testified to the circumstances relating to the crime, but we need narrate only that testimony which seems critical to the Government’s case.
An inmate of cellhouse B testified for the Government to the effect that on or about October 26, 1965, Armstrong was lying in his cell on the fourth gallery when there was “some loud noise” on the first floor; that he came out of his cell, leaned out and yelled down to Neighbors on the first floor “something about keep quiet, and they had a little exchange of words” in which “Somebody referred to somebody as a punk; I don’t remember which one.” He also testified that two or three days later on October 29 at about 5:00 p.m. he was going up the stairway from the third gallery to the fourth when he heard a scream; that when he reached the fourth gallery, he stepped back into the “cutoff”, i.e. the opening between the two ends of the cell block”, and saw two men running, one - of whom was Neighbors and the other he could not identify; that the men ran down the steps and out the side doorway toward the yard; and that an officer pursued them down the stairs to the door where he stopped before running out into the yard.
Officer Stauffer testified as the Government’s chief witness to the effect that on the day of the murder he was patrolling the third, fourth and fifth galleries in cellhouse B during the evening mealtime ; that at approximately 5:00 p.m. he had made his round of the fourth gallery and had noticed Armstrong lying in his cell “supposedly asleep” with a towel over his forehead; that he continued his patrol on the fifth gallery, came back down the stairs and was at the corner of the fourth gallery when he heard a man scream; that as he turned the corner he saw two inmates, whom he later identified as Reed and Neighbors, emerging from a cell with a third immediately behind them “clutching his chest with blood coming out from the wounds he had received prior * * * to me coming to the fourth gallery”; that the other two inmates looked his way, hesitated for a moment and “left”; that he pursued them (past the deceased who had fallen to the floor) down the stairs, through the center part of the cellhouse and saw them run through the door to the yard; that he could see one of the inmates still running, and as he approached the open door “I saw an inmate waiting there for me with a knife”; that “I looked at his face and realized the situation and I looked at the knife and it still had blood on it. I immediately backed up and this man then started to run down a walkway”; that when he disappeared from sight he was running in the direction of the auditorium of the Protestant Chapel. Another officer testified that about the same time he also saw “someone running” in the direction of the auditorium. (On trial Stauffer identified the inmate with the knife as appellant Reed.) Stauffer testified further that by this time the other inmate had slowed to a walk; that he hailed another officer and they pursued the man and took him. into custody. (On trial he identified this inmate as Neighbors.) He testified that Neighbors was left in the custody of the other officer while he returned to the cell-house, placed Armstrong on a stretcher and turned him over to some other officers who took him to the hospital. About an hour and a half later, Reed was taken into custody and Stauffer identified him as one of the men he had pursued.
A patient on the second floor of the prison hospital, directly across from the auditorium, testified that he was “sitting by the window on the bed, looking out the window, I heard a scream coming from the direction of B cellhouse. * * * I saw a man run over here [indicating on a scale model of the prison] where there are some bushes, D cellhouse, stop and cast a glittering object upon the auditorium of the Protestant chapel and the man stepped around the corner and went into D cellhouse.” Another prison officer testified that on the day after the murder he “picked up a knife on the roof of the auditorium building”, wrapped it in a handkerchief and “turned it in to the captain’s office”; that two days later he returned to the captain’s office, identified the weapon he had found, put his initials on it with an electric needle for identification purposes and placed it in a large brown envelope. When shown the knife as a Government exhibit, he testified that it was the same knife he had found and that it was in substantially the same condition as when he found it. When Stauffer was shown the knife as a Government exhibit, he stated that “This knife resembles very closely the knife that was pulled on me at the north door [to cellhouse B].” Another Government witness (an F.B.I. agent) testified that the knife exhibit had been subjected to laboratory tests and was found to have human blood on it.
The crux of appellant’s argument is that the evidence is critically inconsistent and insufficient and, therefore, does not justify a verdict of guilty. He points out that only one of the Government’s sixteen witnesses could identify Reed and relies upon the countervailing evidence tending to show an alibi. He also suggests the total lack of evidence of motive, but at the same time concedes that it is not essential to the Government’s case. And see Pointer v. United States, 151 U.S. 396, 414, 14 S.Ct. 410, 38 L.Ed. 208. We think the circumstantial evidence entirely sufficient to justify the verdict of the jury.
Reed attacks the ruling of the court admitting the knife into evidence contending that no proper foundation was laid. The law applicable to admissibility of physical exhibits is clearly stated in Brewer v. United States, 8 Cir., 353 F.2d 260, to the effect that if, upon consideration of the nature of the article, the circumstances surrounding the preservation and custody of it and the likelihood of intermeddlers tampering with it, the trial judge deems the article to be in substantially the same condition as when the crime was committed, he may admit it into evidence, and his determination “that the showing as to identification and nature * * * is sufficient to warrant reception of an article in evidence may not be overturned except for a clear abuse of discretion.” Id., 262, quoting and citing Gallego v. United States, 9 Cir., 276 F.2d 914, 917; see also West v. United States, 8 Cir., 359 F.2d 50, 55. We find no such abuse here.
There was testimony by the officer who found the knife, by the prison custodian and by the F.B.I. agent who had run laboratory tests on the knife tending to establish its proper care and preservation in the interim between its discovery and the trial. These witnesses further testified that when it was offered in evidence it was in the same condition as when it was found and examined.
With typical care and solicitude Judge Stanley heard argument out of the presence of the jury on the objections to the knife’s admissibility. In ruling on the evidence he noted there were some minor inconsistencies in the testimony, but then stated that “ * * * all of this, I think, goes to the weight of the evidence rather than to its admissibility.” We think the knife was properly received in evidence.
The judgment is affirmed.
. Cellhouse B is composed of five galleries or floors consisting of individual or double cells running the length of the cellhouse. The stairway is in the center of the building with a cutout or walkway from either side of the stairs to each gallery.
. During mealtimes, the North door from the cellhouse to the yard is open. The inmates are allowed to go down by galleries to eat their meals, to stay in the yard for awhile and to come back through the North door.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
MARTIN MARIETTA CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
No. 15618.
United States Court of Appeals Seventh Circuit.
April 11, 1967.
Rehearing Denied May 8, 1967, en banc.
Schnackenberg, Circuit Judge, dissented.
Harold F. Baker, Terrence C. Sheehy, Washington, D. C., for petitioner, How-rey, Simon, Baker & Murchison, Washington, D. C., Clarence W. Miles, Clark C. Vogel, Edwin V. Petz, New York City, of counsel.
J. B. Truly, Asst. Gen. Counsel, and Charles C. Moore, Jr., Atty., F. T. C., James Mcl. Henderson, Gen. Counsel, Washington, D. C., for the Federal Trade Commission.
Before HASTINGS, Chief Judge, and SCHNACKENBERG, and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.
Martin Marietta Corporation petitions for review of an order of the Federal Trade Commission granting in part and denying in part a motion for modification of an order of divestiture previously entered by consent. The question presented concerns the reviewability of the Commission’s order.
The Commission issued a complaint against the petitioner in January 1961 charging that the petitioner’s acquisition of various concrete pipe, cement, lime, and construction aggregates properties was in violation of section 7 of the Clayton Act, 15 U.S.C. § 18, and section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Negotiations between the petitioner and the Commission staff resulted in the execution of a consent agreement on February 5, 1963, which was effectuated by order of the Commission on March 12, 1963. The consent order, in part, required the petitioner to divest itself of sixty-one concrete pipe plants, thirteen construction-aggregates quarries or quarry sites, and two lime plants within a period of twenty-four months.
In September 1964 the petitioner requested the Commission to modify the consent order by deleting eight of the thirteen quarries from the divestiture provisions because of changed conditions of fact. The Commission’s Bureau of Restraint of Trade responded to the petitioner’s application, challenging the allegations contained in it. Subsequently, in March 1965, the petitioner filed a reply alleging additional information and submitted a request that the Commission permit oral argument “prior to any negative action” on the motion to modify. In December 1965, at the Commission’s request, the reply was supplemented by the petitioner’s current data, at which time the petitioner renewed its request to be heard orally prior to any unfavorable action.
On January 12, 1966, the Commission, without hearing argument, entered the order challenged in this proceeding. The order modified the earlier consent order by striking one quarry from the list of those required to be divested, but denied the petitioner’s motion as to the remaining quarries, stating that “there has been no showing made that changed conditions of fact or law or the public interest warrant modification.”
The petitioner contends that the Commission’s order must be set aside on review because, in denying the petitioner’s motion to make additional modifications in the consent order, the Commission did not afford the petitioner an evidentiary hearing with respect to the seven quarries not deleted and did not comply with its own rules regarding the procedure for modifying existing orders. The Commission, on the other hand, contends that insofar as its order denies the petitioner’s motion to modify the consent order it is not subject to review by this court. We agree with the Commission.
The pertinent statutory provisions relating to modification of the Commission’s orders after the time for review has elapsed are section 5(b) of the Federal Trade Commission Act, 15 U.S.C. § 45(b), and section 11(b) of the Clayton Act, 15 U.S.C. § 21(b), whose terms are identical in all important respects. Section 5(b) of the Federal Trade Commission Act provides in part:
After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require: Provided, however, That the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States, in the manner provided in subsection (c) of this section.
The “review” which may be obtained under this section is a review of the “order entered after * * * reopening,” not a review of the original order. The review must therefore confine itself to the modifying order, more specifically, to that portion of the order which effects changes in the original order.
The portion of an “order entered after * * * reopening” which refuses any further modification of the original order is not reviewable. Any other interpretation of the statute is logically inconsistent with the finality of the original order. Further, a different construction would place the Commission in a position which we think Congress did not intend. Neither the Federal Trade Commission Act nor the Clayton Act provides for review by courts of appeals of any action of the Commission denying a motion to reopen or modify a final order. If the Commission had summarily denied the petitioner’s motion, its action would not be subject to review. If, on the other hand, by modifying in one particular an order previously entered the Commission thereby opens its previous order to a second review in all particulars challenged, the Commission is faced with a dilemma; it is likely to be discouraged from granting relief which it is not obliged to extend but which it might otherwise grant, at least in part, at the request of persons bound by orders which have become final.
We think the statute was intended to provide judicial review of action taken by the Commission which is unfavorable to or is resisted by a person subject to an existing order. It is for this reason that the statute requires the Commission to provide “notice and opportunity for hearing” prior to modifying such an order. In the instant case, the only modification occurred as a result of the petitioner’s request, and the petitioner does not object that a portion of its request was granted. The petitioner’s objection is that its request was not granted in its entirety. It seeks a review of the Commission’s refusal to make further modifications in the consent order, or at least a review of the Commission’s refusal to grant the petitioner a hearing with respect to the additional modifications the petitioner requested. The petitioner has no right to such review.
There is another reason, aside from the lack of statutory authority, why the Commission’s order is not reviewable. The order which the petitioner sought to modify is a consent order. The agreement reached by the petitioner and the Commission prior to the entry of the consent order states in part:
Upon entry of this consent order, [petitioner] waives any further procedural steps before the hearing examiner and the Commission, a statement of findings of fact and conclusions of law, and all of the rights it may have to challenge or contest the validity of the order to divest and to cease and desist entered in accordance with this agreement.
The order entered pursuant to this agreement is therefore basically similar to a consent decree entered by a court. The scope of review of consent decrees is extremely narrow. Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379 (7th Cir. 1953). “Ordinarily a party to a consent decree cannot question its validity on appeal, if the court had jurisdiction to enter the decree, unless there are facts which nullify the consent.” In re 4145 Broadway Hotel Co., 100 F.2d 7, 8 (7th Cir. 1938). In Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587 (1928), the Supreme Court affirmed an order of the Supreme Court of the District of Columbia overruling motions to vacate a consent decree entered four years earlier. The Court stated:
The decree sought to be vacated was entered with the defendants’ consent. * * * “[A] decree, which appears by the record to have been rendered by consent is always affirmed, without considering the merits of the cause.” * * * Where, as here, the attack is not by appeal or by bill or review, but by a motion to vacate, filed more than four years after the entry of the decree, the scope of en-quiry may be even narrower. Id. at 323-324, 48 S.Ct. at 314.
The petitioner did not seek review of the consent order when it was entered and does not now challenge the Commission’s jurisdiction over the subject matter or allege lack of consent. The petitioner asks us to review the Commission’s refusal to vacate a portion of the order. By its consent to the order, however, the petitioner waived its objections to the terms of the order. The petitioner may not challenge the Commission’s refusal to modify those terms.
The petition for review is dismissed.
. The complaint was issued against American-Marietta Company, Chicago, Illinois. The petitioner was formed by a statutory consolidation of American-Marietta and the Martin Company, Baltimore, Maryland, in October 1961.
. Crushed stone, sand, and gravel.
. The petitioner divested itself of the concrete pipe plants and the lime plants, which had a combined book value of approximately $40,700,000.
. The total book value of the quarries was approximately $3,600,000. The book value of the eight quarries not divested is approximately $3,000,000.
. The petitioner’s subsequent motion for reconsideration and for an evidentiary hearing “to resolve * * * factual disputes” was also denied by the Commission, with the statement that “even if the facts set forth by [petitioner] in its application to modify the consent order are taken as true, there has been no showing made that changed conditions of fact or law or the public interest warrant modification. * * * ”
. The agreement also provides that the consent order “is agreed to be dispositive of all the issues in this case,” and adds that “it may be altered, modified or set aside in the same manner and within the same period provided by statute for other orders.”
. The difficulty of reviewing the denial of the petitioner’s motion to modify the consent order should also be noted. Because the matter was not contested, and as stated in the consent agreement, “the record on which the decision of the Commission * * * shall be based shall consist solely of the complaint and this agreement.” The facts upon which the Commission relied in issuing its complaint and which prompted the petitioner to enter the consent agreement are therefore not available to us in determining whether the Commission erred or otherwise abused its discretion in refusing to modify the consent order on the basis of “changed conditions of fact.” This is another indication why the Commission’s order is not reviewable. Cf., Swift & Co. v. United States, 276 U.S. 311, 327, 329, 48 S.Ct. 311 (1928).
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_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
ARTHUR N. OLIVE CO., Inc., et al., Defendants, Appellants, v. UNITED STATES of America, for the use and benefit of Dan C. MARINO, etc., Plaintiff, Appellee.
No. 5881.
United States Court of Appeals First Circuit.
Heard Nov. 8, 1961.
Decided Dec. 8, 1961.
On Rehearing Jan. 16, 1962.
Charles E. Gennert, Boston, Mass., with whom Herbert L. Crimlisk and Withington, Cross, Park & McCann, Boston, Mass., were on brief, for appellants.
Philip D. Epstein, Boston, Mass., for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment following a jury verdict in the United States District Court for the District of Massachusetts for the use plaintiff, Dan C. Marino (hereinafter called Marino), in an action to recover on a payment bond filed under the Miller Act. 49 Stat. 793, 40 U.S.C.A. § 270a et seq. Marino, a resident of Massachusetts, is engaged in the contracting business.
On June 25,1958, the appellant, Arthur N. Olive Co., Inc., (hereinafter called Olive), a Massachusetts corporation, contracted with the United States to construct Sewerage System Modifications at three NIKE Battery sites in Massachusetts. Olive furnished a payment bond with the New Amsterdam Casualty Company as surety. On August 7, 1958 Olive subcontracted a portion of his prime contract to Marino for $62,000. Incident to this subcontract, Marino furnished labor and materials valued at some $55,000 to $57,000, leaving a total of $5,000 to $6,000 worth of work unperformed at the time that work was discontinued because of an alleged breach of the contract by Olive.
In addition to the work which he performed incident to the subcontract, Marino at Olive’s direction performed “extra” work at the same sites which were the subject of the original agreement. These extras, some but not all of which were contemplated in the initial subcontract, embraced such projects as drilling, blasting, trenching and- laying pipe. Testimony of Marino indicated that the value of these extras amounted to approximately $37,000. Marino, in establishing the basis for the extras testified that his charges were fair and reasonable in each instance. He was unable to identify with any notable specificity the precise profit margin on a particular project. However, his testimony indicated that while his minimum profit margin was ten percent, in some instances it rose to as much as thirty-five percent.
Ninety days having elapsed since he performed the last of his work on the NIKE installations, Marino brought this action to recover under the “payment bond” filed pursuant to the Miller Act. Both Olive and New Amsterdam were joined as defendants in this suit. At the time that he initiated this action, Marino had billed Olive $54,000 under the subcontract and had been paid $52,-500.
Marino’s complaint, invoking the jurisdiction of the district court under the Miller Act, recited the fact that he had agreed with Olive to furnish labor and materials for the Sewerage System Modifications, that such labor and materials were actually furnished and “that by reason of furnishing the aforesaid materials there became due and owing to the use plaintiff, Dan C. Marino, the sum of forty-two thousand one hundred eleven dollars 9/100 ($42,111.09) with interest thereon. * * *”
Following a lengthy trial, the jury returned a verdict for Marino in the sum of $30,633.17 to which interest was added.
The principal questions on this appeal arise from the instructions of the trial judge to the jury on the elements which it might consider in awarding Marino damages. In discussing the question of damages the trial judge charged the jury:
“If you find for the plaintiff you are to assess damages sufficient in amount to compensate the plaintiff for the loss you find he actually sustained; that is, he is to recover the amount you find to be due for any extras which you find he performed at the request of the Olive Company, plus any amount you find still to be due, if you find such, on the basic contract plus the profit, if any, he would have made on the remaining unperformed portion of the contract which was not completed by him, and to determine this last figure you are to take the balance unpaid on the contract and subtract from it what you find to be the cost of completing the unfinished work.”
Appellant objected to that portion of the charge which permitted the recovery of profit on unperformed work under the basic contract. It also objected to the language in the charge which would permit a recovery of profit on the “extras” which were supplied by Marino. Appellant argues that by permitting the jury to award profits “on the remaining unperformed portion of the contract which was not completed by him” the trial judge, in effect, permitted Marino to recover damages for a breach of the contract. It urges that recovery of such damages — by a subcontractor situated as Marino — would be manifestly outside the purview of the Miller Act. We agree with appellant’s position in this regard.
The Miller Act, like its statutory predecessor, the Heard Act, 28 Stat. 278, was enacted to give those supplying labor and materials for government construction contracts, protection comparable to that furnished by mechanics’ and materialmen’s liens where private construction is involved. United States v. Harman, 192 F.2d 999 (4 Cir. 1951); see, United States v. Munsey Trust Co., 332 U.S. 234, 241, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947). So far as is relevant here the Miller Act provides: “ (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished * * * shall have the right to sue on such payment bond for the * * * balance * * * unpaid at the time of institution of such suit * * 40 U.S. C.A. § 270b(a).
The Act is a Congressional recognition of the equity in favor of those whose actual expenditure of work or utilization of material has enhanced the value of the property in question. However, since the statute was enacted to confer rights equivalent to those which would accrue under a lien where private construction is involved and since unrealized gain or profit for breach of contract cannot be recovered under such a lien, a subcontractor should not be allowed to recover for loss of profits on the statutory bond under the Miller Act. While the subcontractor may assuredly institute an independent action against the contractor for the unrealized profits stemming from the breach, the courts are uniform in holding that such an action may not be maintained against the surety on the contractor’s bond under the Miller Act. L. P. Friestedt Co. v. U. S. Fireproofing Co., 125 F.2d 1010 (10 Cir. 1942); United States v. John A. Johnson & Sons, 65 F.Supp. 514 (D.C.Md.1945), aff’d., 153 F.2d 534 (4 Cir. 1946); United States v. Maryland Casualty Co., 54 F.Supp. 290 (D.C.W.D.La.1944), aff’d., 147 F.2d 423 (5 Cir. 1945); United States, to Use of Watsabaugh v. Seaboard Surety Co., 26 F.Supp. 681 (D.C.Mont.1938), aff’d., 106 F.2d 355 (9 Cir. 1939).
Moreover, a reading of the complaint shows that, consonant with the statutory criteria, Marino merely sought recovery on the basis of the labor and materials which were actually furnished in the construction of the projects here at issue. However, it is apparent that under the trial judge’s instructions, Marino was allowed to recover not only for the labor and materials supplied but also for the profit on the labor and materials which he did not supply because of the supervening breach by Olive — “the profits on the unperformed portion of the contract.” In short, Marino was enabled to recover for an item which he failed to even ask for in his complaint.
Quite apart from the foregoing, the charge of the trial judge is also subject to the infirmity that, in effect, it permitted Marino a double recovery of one of his ostensible items of damage. As seen above, the trial judge told the jury that in computing its award of damages for Marino, it might consider three distinct items: (1) the amount due for extras ; (2) the amount yet unpaid on the basic contract; (3) the profit on the unperformed portion of the contract. Under these instructions the court allowed the jury to award Marino the “amount due on the basic contract” twice. The possibility of this dual recovery is best exemplified by a tabular presentation of the pertinent amounts here at issue. Thus, following the judge’s instruction, the jury would have computed the “amount due on the basic contract” as follows:
Work performed $55,000 or $57,000
Less :
Payments by Olive $52,500
Balance $ 2,500 or $ 4,500
Having made this computation, the jury presumptively would then turn to the next item enumerated by the court— the profit on the unperformed portion of the contract. Under the instruction this was to be computed by taking the balance unpaid on the basic contract and deducting from it the cost of completing the unperformed work. This computation would appear tabularly as:
Contract $62,000
Payments $52,500
Balance unpaid on the contract $ 9,500
Less:
Cost of completing $5,000-$6,000 worth of unperformed work.
It is obvious, relative to this last calculation, that the trial judge should have directed the jury to deduct from the $9,500 figure the $2,500-$4,500 amount which had previously been computed as a separate item. Under the court’s formula, the jury was thus allowed to award $2,500-$4,500 damages a second time. This, of course, was demonstrably prejudicial to the appellant.
Appellant’s second principal contention is that Marino was not entitled to a profit on the “extras” which he furnished but rather that he should be restricted to their actual cost. There is no question that the extras were all furnished at Olive’s direction, with his acquiescence and were utilized on the instant projects. We believe that in this situation the subcontractor should be allowed to recover a reasonable profit on the extras thus furnished. Out-of-pocket expense is not the limit of the fair value of labor and materials. See Continental Casualty Co. v. Schaefer, 173 F.2d 5, 8 (9 Cir. 1949). The question of whether Marino’s charges for the extras were reasonable may be determined on the remand of this case.
Judgment will be entered vacating paragraphs 1 and 2 of the amended judgment of the District Court, setting aside the verdict to that extent, remanding the case to that Court for a new trial on the complaint, as amended, and affirming paragraph 3 of said amended judgment.
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:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ADVANCE ALUMINUM CASTINGS CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
No. 9519.
Circuit Court of Appeals, Seventh Circuit.
June 2, 1948.
Frank J. Albus, of Washington, D. G, James F. Spoerri and Bobb, Spoerri, Bourland & Harris, all of Chicago, 111., for petitioner.
Theron L. Caudle, Asst. Atty. Gen., and Sewell Key, George A. Stinson, S. Walter Shine and Melva M. Graney, Sp. Assts. •'O Atty. Gen., and Charles Oliphant, Chief Counsel, Bureau of Internal Revenue, and John M. Morawski, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. G, for respondent.
Before KERNER, and MINTON, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Petitioner questions a deficiency assessment in its income tax for the year 1942, determined by the Commissioner of Internal Revenue and approved by the Tax Court, of $51,313.24. The controversy between the parties presents only the question of whether, in determining its taxable income for income tax purposes for the period involved, petitioner was enttiled to deduct from its net income a credit of $504,-579.32 for excess profits, as it insists, instead of a credit of $376,296.24 as determined by the Commissioner and the Tax Court, — a purely legal question as to which of the two sums constitutes the proper credit under the pertinent revenue statutes.
Petitioner is a manufacturer of aluminum products, which it sells in two ways,— in ordinary sales and in installment sales. Its books are kept upon a calendar year accrual basis of accounting and its taxes have been reported and paid upon that basis, except that receipts from installment sales have been reported and tax thereon computed under the alternate plan provided for installment sales by Section 44(a) of the Internal Revenue Code. However, after Congress had enacted Section 736(a) of the Internal Revenue Code in 1942, granting relief to installment sales taxpayers by providing that they might elect to compute their excess profits tax, insofar as it involved installment sales, upon an accrual basis, rather than under Section 44, petitioner elected to compute its excess profits tax income, in accord with this section, upon an accrual basis. Calculated upon this formula, petitioner’s adjusted excess profits net income was $376,296.24; and upon that basis, admittedly correct, the excess profits taxes were assessed ’and paid. The parties diverge upon whether this was the proper excess profits tax credit deductible from petitioner’s net income in determining its income taxes. Petitioner contends that it should have been permitted to deduct an excess profits tax credit, calculated upon a consideration of its income upon the installment basis, which, in turn, would have resulted in a deductible credit of $504,579.32, reducing its income tax to that reported and completely eliminating the deficiency approved by the Tax Court.
Section 13 of the Internal Revenue Code, as amended by the Acts of 1939 and 1942, provides that corporate adjusted normal net income for income tax purposes shall be net income, minus the credit for income subject to the excess profits tax. Section 15, similarly defines corporate sur-tax net income. Section 26 gives to a corporation the right to deduct from its net income the excess profits tax credit. In 1942 Congress added Section 736(a) providing that taxpayers who had been computing income from installment sales in accord with the alternate method provided by Section 44 (a) of the Revenue Code, might elect, for the purpose of determining their excess profits taxes, to compute their income from installment sales on an accrual basis, in accord “with regulations prescribed by the Commissioner.” These statutory provisions appear in 26 U.S.C.A. §§ 13, 15, 26, 44(a), 710, 711 and 736.
Following the latter enactment, the Commissioner promulgated Regulation 112, which provides that, in case of election by the taxpayer to compute his excess profits tax income on an accrual basis, his income tax shall be based upon net income including “income from installment sales computed under the installment method provided by Section 44(a)” and the excess profits tax upon an income reflecting installment sales income calculated on an accrual basis, and that the credit to be allowed under Section 26(e), in determining taxable income for income tax purposes, shall be calculated by including in the excess profits tax income receipts of sales on installment sales on an accrual basis. This regulation, says the petitioner, exceeds the statutory enactment and includes provisions not contemplated by the Act of Congress.
Petitioner contends that inasmuch as Section 736(a) was applicable only to the excess profits tax, it was the intent of Congress to retain the amount of credit which it might have deducted, under its former method of reporting its excess profits tax income, from its taxable net income for income tax purposes. It insists that, though it elected to account for its receipts from installment sales on the accrual basis, thereby reducing its taxable excess profits income, it was still entitled, in computing its income for income tax purposes to deduct as a credit, not the excess profits tax income as actually computed but the amount it might have deducted had it continued to report its excess profits tax income on the installment basis under Section 44(a), and it argues that the statute, when properly interpreted, justifies this construction.
We think the argument unsound. After the excess profits tax sections were enacted, corporations were subjected both to that tax and to normal and sur-income taxes. Consequently, Congress, in order to avoid excessive taxation, in Sections 13 and 15, provided that corporations might have a credit against their normal and surtax income in the amount of their income subject to excess profits tax. In other words, the income for income tax purposes was reduced by the amount of income subject to the excess profits tax. Obviously Congress’ purpose was to avoid double taxation of that portion of income subjected to an excess profit tax and to exempt it from income taxes. The various sections to which we have previously referred plainly evince this intent. Thus, when petitioner found itself subjected to both taxes, realizing that it might advantageously elect to report, for excess profits tax purposes, its installment sales receipts on an accrual basis, as provided by 736(a), it was entitled, in computing its taxable net income for income tax purposes, to a credit upon taxable income for just so much as its excess profits tax income amounted to, however calculated, that is, whether upon an accrual basis or upon an installment basis. By reducing its excess profits tax, by electing to take advantage of the option granted by Congress under Section 736(a), it was able, as Congress intended, to reduce its excess profits tax income and its excess profits tax thereon, but we read nothing in the statute that would justify an implication that Congress intended at the same time to exempt from income taxes that portion of income eliminated from excess profits tax liability. Indeed, the whole purport of the legislation is to the contrary, the intent having been at all'times that the net income for income tax purposes should be decreased only by the amount of the excess profits tax income in order to avoid double taxation of the same income. It would be a violent and unjustified construction to conclude that petitioner could reduce its excess profits tax under the option granted by Congress and at the same time deduct from its taxable net income an excess profits tax income credit nowhere in existence, calculated upon the installment basis. To permit this would remove from all excess profits taxation and from all income taxation, in this particular instance, some $128,000 in income and reduce the income tax to a figure below what it would have been, had no excess profits tax been imposed. To our mind there is nothing to justify petitioner’s contention that the statute permitted it to deduct a credit reflecting its income on the installment basis, and that the credit to be allowed should be upon that basis. To permit this would ignore the essential fact that when petitioner elected to report its adjusted excess profits net income on the accrual basis under Section 736(a) it thereby automatically established the credit which it might deduct from its taxable net income for income tax purposes.
We think the reasoning of the court in Commissioner v. South Texas Lumber Company, 333 U.S. 496, 68 S.Ct. 695, 700, applicable to the situation here. There the court said: “There is no indication in any of the congressional history, however, that by passage of this law Congress contemplated that those taxpayers, who elected to adopt this accounting method for their own advantage could by this means obtain a further tax advantage denied all other taxpayers, whereby they could, as to the same taxable transaction, report in part on a cash receipts basis and in part on an accrual basis.”
The attack upon the validity of the regulation involved is completely met by the decision in Commissioner v. Texas Lumber Company, supra.
The decision is affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_usc2sect
|
933
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Leland K. AUBREY and Charlotte R. Aubrey, Appellants, v. UNITED STATES of America, Appellee.
No. 14157.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 20, 1958.
Decided April 10, 1958.
Mr. Bernard J. Hammett, Washington, D. C., with whom Messrs. W. Byron Sorrell and Cullen B. Jones, Jr., Washington, D. C., were on the brief, for appellants.
Mr. Stanley D. Rose, of the bar of the Supreme Court of Tennessee, pro hae vice, by special leave of Court, with whom Asst. Atty. Gen. George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellee. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellee.
Before Reed, Associate Justice of the Supreme Court, retired, and PRETTY-MAN and Bazelon, Circuit Judges.
Sitting by designation pursuant to Section 294(a), Title 28 U.S.C., 28 U.S.C.A. § 294(a).
REED, Associate Justice
(sitting by designation).
Leland Aubrey and his wife, Charlotte Aubrey, appeal from the order of the District Court granting summary judgment against them in their suit against the United States under the Tort Claims Act. The principal questions on appeal are (1) whether the workmen’s compensation statute applicable to a civilian employee of a Navy officers’ open mess bars him from suing the United States for injuries suffered in the course of his employment as the result of the negligence of the United States; and (2) whether the injured employee’s wife may maintain a suit against the United States for loss of consortium resulting from the alleged injury.
On October 22, 1954, Leland Aubrey was assistant manager of the Officers’ Mess at the Naval Gun Factory in Washington, D. C. The Officers’ Mess is a nonappropriated fund activity and Aubrey’s salary as an employee of the Mess was paid from the proceeds of the sale of food and beverages. The Mess had agreed to provide catering service for a Navy Relief Ball which was to be held on the evening of October 22, 1954, in a large hall at the Gun Factory. This hall, known as the “Sail Loft,” was owned, maintained and controlled by the Naval Gun Factory and was not a part of the facilities of the Officers’ Mess. On the day of the dance the hall was being waxed by Navy enlisted men acting within the scope of their employment, when Aubrey, in the course of his duties in preparing the catering arrangements, entered the “Sail Loft,” slipped on the newly-waxed floor, fell and broke his ankle.
The Mess, as required by statute, had provided workmen’s compensation insur-anee. Aubrey received from the insurer the sum of $279.00 as payment for medical expenses and further payments totaling $710.00 for disability. Later Aubrey filed this action under the Federal Tort Claims Act, seeking to recover damages from the United States for his injuries and alleging that the injuries were proximately caused by the negligence of the United States and its employees in cleaning and waxing the floor upon which he slipped and fell. His wife, appellant Charlotte Aubrey, joined as plaintiff and sought to recover damages from the United States for loss of consortium.
The record discloses that at the pretrial proceeding in this action, it was stipulated by counsel for plaintiffs and counsel for the United States that “Plaintiff Leland Aubrey was not a Government employee on October 22, 1954.” On appeal, Aubrey argues that even if the compensation is the exclusive remedy against his employer, this does not bar his right to sue the defendant since, according to the stipulation, the Government was not his employer. We hold that the compensation provided by the Officers’ Mess, an instrumentality of the United States, was Aubrey’s exclusive remedy against the United States. By enacting a statutory system of remedies for injuries in the course of employment by these government instrumentalities, Congress has limited the remedy available against the United States by civilian employees of such instrumentalities to workmen’s compensation, the cost of which is borne by the self-supporting in-strumentalities themselves.
By the Act of June 19, 1952, Congress sought to allay certain doubts concerning the status of civilian employees of non-appropriated fund activities under the jurisdiction of the Armed Forces. These doubts had been raised by the holding of the Supreme Court in Standard Oil Co. v. Johnson, 1942, 316 U.S. 481, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611, that Army post exchanges are “arms of the Government” and “integral parts of the War Department” and that they therefore participate in the government’s immunity from state taxation. The Civil Service Commission thought that the effect of this decision was to require that the employees of such instrumentalities be considered federal employees and subject to the general federal personnel laws. The Department of Defense did not view the Johnson case as requiring the inclusion of these employees in the same class as employees of activities operated on appropriated moneys, and sought legislation which would clarify their status. Another purpose of the requested legislation was to require by law what was then the practice of non-appropriated fund activities of providing workmen’s compensation protection for their employees. S.Rep. No. 1341, 82d Cong., 2d Sess. (1952); H.R.Rep. No. 1995, 82d Cong., 2d Sess. (1952); 2 U.S. Code Congressional & Administrative News 1952 p. 1520.
The bill proposed by the Department of Defense was subsequently enacted into law. While specifically preserving the status of the nonappropriated fund activities as federal instrumentalities, the Act provided that employees of such activities shall not be considered employees of the United States for the purpose of laws administered by the Civil Service Commission or the provisions of the Federal Employees Compensation Act (5 U.S.C. § 751, 5 U.S.C.A. § 751), and required nonappropriated fund instrumentalities to provide their employees with compensation for death or disability incurred in the course of employment.
An officers’ mess, like a post exchange, is an integral part of the military establishment. Pursuant to Congressional authorization, 10 U.S.C. § 6011,10 U.S.C.A. § 6011, the Secretary of the Navy has issued regulations governing the organization and operation of naval officers’ messes. U. S. Navy Regulations 1948, Arts. 0441.6, 1841, provide that the administration and operation of officers’ messes shall be under the control and regulation of the Chief of Naval Personnel. The latter has promulgated directives requiring that the messes be organized as integral parts of the Navy and that they be operated under the administration and regulations of the commander or commanding officer of the activity where the mess is located subject to regulations issued by the Chief of Naval Personnel. Bur. of Naval Personnel Man. Arts. C-9501, C-9505. The Bureau of Naval Personnel has also issued detailed instructions concerning every facet of the management of naval officers’ messes. Manual for Commissioned Officers’ Messes Ashore, Navpers 15847, 1955. Similarly detailed instructions govern the accounting methods to be used by the messes. Accounting Systems for Open and Closed Messes Ashore, Navexos P-1032. Cf. Standard Oil Co. v. Johnson, supra, 483-4; Edelstein v. South Post Officers Club, D.C.E.D.Va. 1951, 118 F.Supp. 40; Bleuer v. United States, D.C.E.D.S.C.1950, 117 F.Supp. 509.
The close relationship between such nonappropriated fund instrumentalities as officers’ messes and the military establishment of which they form an arm justifies legislative control of the former by Congress. By § 150k-1, Congress has directly regulated the conduct of these activities to the extent of requiring them to provide workmen’s compensation protection for their civilian employees. The requirement that the instrumentalities themselves provide the protection, by insurance or otherwise, was obviously intended to insure that the cost of such protection would be paid out of the proceeds of these self-supporting activities and not out of public funds.
In Feres v. United States, 1950, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, the Supreme Court considered the question whether a plaintiff injured while on duty with the armed forces through alleged negligence of the United States could sue under the Tort Claims Act. The court noted that Congress had provided systems of simple, certain, and uniform compensation for injuries or death of those in the armed services, and construed the Tort Claims Act to fit into the entire statutory scheme of remedies against the Government to make a workable, consistent and equitable whole. It held that in view of the compensation system provided, it was not the intent of Congress to allow a serviceman to sue the United States for injuries incident to his duties in the armed forces, although the Tort Claims Act did not expressly withhold his right to sue the United States.
The Supreme Court in Johansen v. United States, 1952, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, applied the same principie in affirming the dismissal of a suit against the United States by a civilian seaman for damages for injuries incurred in his employment aboard a public vessel and caused by the alleged negligence of the United States. The court held that since the seaman was protected by the Federal Employees Compensation Act, 5 U.S.C.A. § 751 et seq., he could not bring suit against the United States under the Public Vessels Act, 46 U.S.C.A. § 781 et seq. even though again the Compensation Act did not in terms state that it was the exclusive remedy available against the United States for such injuries.
We conclude that Aubrey is precluded from maintaining this suit under the Tort Claims Act by the principle set forth in Feres and Johansen that the Act was not intended to -grant the right to sue the Government to one who has been provided another remedy against its own instrumentality by the Government through a system “of simple, certain, and uniform compensation for injuries or death.” *The compensation system provided for plaintiff Aubrey must, like the Tort Claims Act, “be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.’’ See also Lewis v. United States, 1951, 89 U.S.App.D.C. 21, 190 F.2d 22; Sigmon v. United States, D.C.W.D.Va.1953, 110 F.Supp. 906. We do not think the fact that the insurer is not the United States but a private insurance carrier requires a distinction between this case and Feres or Johansen.
We turn to the right of action of the wife for damages “for loss of the services, support, companionship and consortium” of her husband, allegedly suffered because of defendant’s negligence. This court has held in Hitaffer v. Argonne Co., Inc., 1950, 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, that the law allows a recovery for such injury. By Smither & Co., Inc. v. Coles, 1957, 100 U.S.App.D.C. 68, 242 F.2d 220, this court reversed the holding in Hitaffer so far as the wife’s right of recovery remained as an individual right, unaffected by the District of Columbia Compensation Act, and held that Mrs. Coles could not recover because liability of the employer provided by the Compensation Act was “exclusive and in place of all other liability of such employer to the * * * wife * * * ” 33 U.S.C. § 905, 33 U.S.C.A. § 905.
In this case the Officers’ Mess, the employer, has met its liability to Aubrey and that arrangement bars the wife’s recovery against the mess under the Smither case. But the present action was predicated on the liability to the Aubreys of the United States as the third party tortfeasor, a liability not covered by the Compensation Act. The Aubreys have brought their cause of action under the provisions of § 33 of the Longhoreman’s Act — the controlling compensation statute in the District of Columbia. Section 33 of the Act, 33 U.S.C. § 933, 33 U.S.C.A. § 933, is the section covering compensation for third party injuries. Since it has been stipulated that the United States is not the employer of Mr. Aubrey, his wife would be entitled to recover for her alleged injury under the Hitaffer case, supra, if negligence for which the United States is responsible is proven.
We think that the allegations of the petition that “through the negligence of the United States and several of its employees * * * in cleaning or waxing the floor of the ‘Sail Loft’ a dangerous condition was created” and appellee’s denial thereof warrants for Mrs. Aubrey a trial for the determination of possible liability.
We think that the contentions of appellant and appellee as to the continued vitality of the Hitaffer case should await the judgment of the trial court as to the liability of the United States under that case.
. 66 Stat. 138 (1952), 5 U.S.C. § 150k-1 (1952), 5 U.S.C.A. § 150k-1; see note 3. The Mess was also an employer and Aubrey an employee within the terms of the District of Columbia Workmen’s Compensation Act. 45 Stat. 600 (1928), § 36-501, D.C.Code (1951), which makes the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424 (1927), 33 U.S.C. §§ 901-950 (1952), 33 U.S.C.A. §§ 901-950, applicable to the District of Columbia.
. 60 Stat. 812, 842 (1946), now 28 U.S.C.A. § 2671 et seq.
. 66 Stat. 138, (1952), 5 U.S.C. §§ 150k, 150k-1, 5 U.S.C.A. §§ 150k, 150k-1; provided in part:
Section 150k: “Civilian employees, compensated from nonappropriated funds, of * * * instrumentalities of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure * * * (etc.) of pereonuel of the Armed Forces, shall not be held and considered as employees of the United States for the purpose of any laws administered by the Civil Service Commission or the provisions of the Federal Employees’ Compensation Act, as amended: Provided, That the status of these nonappropriated fund activities as Federal instrumentalities shall not be affected.”
Section 150k-1: “The nonappropriated fund instrumentalities described in section 150k * * * shall provide their civilian employees, by insurance or otherwise, with compensation for death or disability incurred in the course of employment. * * * (C)ompensation shall be not less than that provided by the laws of the State (or the District of Columbia) in which the employing activity of any such instrumentality is located. * * * ”
. 340 U.S. 144, 71 S.Ct. 158; 343 U.S. 440, 72 S.Ct. 857.
. 840 U.S. 189, 71 S.Ct. 156; 343 U.S. 440, 72 S.Ct. 857.
. See note 1.
. Compare with Hitaffer v. Argonne Co., supra, the annotations thereon, 23 A.L.R.2d 1378, summary § 2; negligence of defendants §§ 6-12 inclusive; American Law Institute, Restatement, Torts § 695, 1954 Supplement § 695; Louis L. Jaffe, Damages for Personal Injury, 18 Law and Contemporary Problems 219, 228-230; Best v. Samuel Fox & Co., Ltd., (1952) A.C. 716, and note on the case in The Modern Law Review, London, vol. 16, p. 92; XXXII Canadian Bar Review, December 1954, p. 1065; 1 U.C.L.A.Law Rev. 223; 55 Mich.L.Rev. 721. See Acuff v. Schmit, Iowa 1956, 78 N.W.2d 480; XIV Washington & Lee L.Rev. 324.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33? Answer with a number.
Answer:
|
songer_r_natpr
|
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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Anthanasios G. DALLIS, Petitioner-Appellant, v. Tommy MARTIN, Respondent-Appellee.
No. 90-6331.
United States Court of Appeals, Tenth Circuit.
April 8, 1991.
Anthanasios G. Dallis, Big Spring, Tex., pro se.
Timothy D. Leonard, U.S. Atty. and Debra A. Woods, Asst. U.S. Atty., Oklahoma City, Okl., for respondent-appellee.
Before ANDERSON, TACHA, and BRORBY, Circuit Judges.
STEPHEN H. ANDERSON, Circuit Judge.
Petitioner, A.G. Dallis, a federal prisoner, filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, challenging a United States Parole Commission decision. The district court dismissed the petition. We affirm.
On August 17, 1987, Dallis was sentenced to a five-year suspended sentence for conspiracy to bomb, and two ten-year consecutive terms of imprisonment for malicious destruction of a building and unlawfully making a firearm. The Parole Commission assigned an offense behavior category of seven which resulted in a parole guideline range of 52 to 80 months. It also “aggregated [Dallis’s] two ten-year sentences and determined that he would not be eligible for parole until he had served 80 months or one-third of his aggregate sentence.” Memorandum Opinion at 2 (September 27, 1990) (“Opinion”). Thereafter, Dallis received a notice of action dated April 12, 1988, that he was continued to a presumptive parole after serving 80 months.
Dallis challenged this agency action in district court. He raised two grounds in his action for habeas corpus relief. First, he argued that the Parole Commission should have calculated his offense behavior as category five which would have resulted in a guideline range of 24 to 36 months. Second, he argued that he is eligible for parole consideration after the service of 40 months because “the penalty provision for his [C]ount 3 conviction [made] him immediately eligible for parole consideration as to that [C]ount.” Opinion at 2-3. The district court determined that: (1) under the Count 3 penalty provision, Dallis must serve one-third of his sentence before parole consideration; and, (2) the Parole Commission properly aggregated Dallis’s two ten-year sentences. Consequently, it decided that the Parole Commission correctly computed Dallis’s parole eligibility date and it dismissed Dallis’s petition. Because a lower offense severity would not change this result, the district court did not address the merits of Dallis’s first ground. On appeal, Dallis raises both grounds again. First, we address the question of Dallis’s parole eligibility date.
Appellant and Appellee agree that pursuant to 18 U.S.C. § 4205(a) and (b) (1988), because the sentencing court “did not exercise its power to set a parole eligibility date, 18 U.S.C. § 4205(a) applies.” Appel-lee’s Brief at 4. Pursuant to 18 U.S.C. § 4205(a) (1988), “a prisoner shall be eligible for release on parole after serving one-third of [his] term ..., except to the extent otherwise provided by law.” Prior to an amendment enacted on October 12, 1984, the penalty statute under which Dallis received his Count 3 sentence, 26 U.S.C. § 5871 (1988), provided such an exception.
The amendment to 26 U.S.C. § 5871 deleted language that allowed the Parole Commission to consider parole at its discretion so that it now reads:
Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, ... be imprisoned not more that ten years....
26 U.S.C. § 5871 (1988). Prior to passage of that amendment, however, the statute continued, “and shall become eligible for parole as the Board of Parole shall determine.” Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 227, 98 Stat.1937, 2030 (“Sec. 227 amendment”).
Dallis asserts that the amended statute became effective on November 1, 1987, after he was sentenced and well after he committed his offenses. Therefore, he argues the prior statute applies to his Count 3 sentence and the Parole Commission had the discretion to immediately consider him for parole as to that Count. The district court decided that the Sec. 227 amendment was effective on October 12, 1984, prior to when Dallis committed his offenses, and so applied to his Count 3 sentence.
I.
Ordinarily, “ ‘judicial review’ of [a] Parole Commission action is ... whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion.” Resnick v. United States Parole Comm’n, 835 F.2d 1297, 1301 (10th Cir. 1987). In this case, however, Dallis’s parole eligibility date depends on a question of law: What was the effective date of the particular Sentencing Reform Act section that amended the Count 3 penalty statute? We review this question de novo.
The Sentencing Reform Act of 1984 (“SRA”) was passed as Chapter II of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837 (“CCCA”). In Romano v. Luther, 816 F.2d 832, 834 (2d Cir.1987), the Second Circuit explained that the CCCA “is an amalgamation of various bills originally drafted in the expectation of being enacted independently of other bills_ [which] contains 23 chapters, each making changes in a different area of federal criminal law.” The Sentencing Reform Act “creates the new system of determinate sentences to be imposed under sentencing guidelines ... and abolishes parole.” Id.
Sentencing Reform Act, Sec. 235 “establishes a uniform effective date for most provisions of ... the [SRA,] provides for certain exceptions to the uniform effective date, and contains special provisions related to the transition from the current system of sentencing to the new system.” Id. at 835. Subsection 235(a)(1) provided that the Sentencing Reform Act, with some exceptions, “shall take effect on the first day of the first calendar month beginning twenty-four months after the date of enactment.” Subsequently, Congress changed this period to thirty-six months. Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat. 1728, 1728. Therefore, most of the Sentencing Reform Act took effect on November 1, 1987. To effect a smooth transition between the parole system and the new determinate sentencing system, however, certain parts of the Sentencing Reform Act necessarily became effective upon enactment of the CCCA on October 12, 1984.
When the CCCA was enacted on October 12, 1984, Sec. 235(a)(l)(B)(ii)(IV) stated: “the provisions of sectio[n] 227 ... [which amended 26 U.S.C. § 5871 by deleting the discretionary provision,] shall take effect on the date of enactment.” Even though in 1986 this section was amended to replace part IV with language specifying when the SRA Sec. 212(a)(2) would take effect, we agree with the district court that the later amendment to Sec. 285 which deleted reference to Sec. 227 did not repeal Sec. 227. The district court explained:
[T]he legislative history of the amendments to Public Law 98-473 does not indicate any express intention to repeal § 227, [and] ... this Court will not interpret § 227 to be repealed by implication. Further, the amendment to 26 U.S.C. § 5871 had already been in effect for two years prior to the 1986 amendment, and therefore, there was no reason to mention § 227 in the subsequent amendments, unless Congress intended to change it.
Opinion at 8 (citing United States v. Batchelder, 442 U.S. 114, 122, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979)); see also United States v. Barrett, 837 F.2d 933, 934 (10th Cir.1988) ("Courts are reluctant to find repeal by implication even when a later statute is not entirely harmonious with an earlier one_unless the text of legislative history of the later statute shows that Congress intended to repeal the earlier and simply failed to do so expressly.”) (citing Watt v. Alaska, 451 U.S. 259, 266-67, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981)). The 1986 amendment to Sec. 235(a)(l)(B)(ii)(IV) merely “add[ed] a fourth event that must precede the effectiveness of the sentencing guidelines — section 212(a)(2) of the Crime Control Act taking effect.” Romano v. Luther, 816 F.2d at 836 n. 4. It did not change the effective date of the Sec. 227 amendment to 26 U.S.C. § 5871 which expressly became effective upon enactment two years earlier. The district court correctly determined that the Sec. 227 amendment was effective on October 12, 1984.
The district court also noted that although the 1985 version of 28 C.F.R. § 2.2(d) was in conflict with the then recently amended 26 U.S.C. § 5871 (1988), in 1988 the regulation was amended to be consistent with the statute. As amended it also deletes the discretionary release of inmates who commit offenses on or after October 12, 1984, and requires completion of one-third of a sentence term before the Parole Commission may consider parole. 28 C.F.R. § 2.2(d) (1990).
Because we also agree that the Parole commission properly aggregated Dallis’s two ten-year sentences to determine an 80-month parole eligibility from a twenty-year base, we hold that the Parole Commission correctly computed Dallis’s parole eligibility.
We need not address Dallis’s other issue on appeal that the Parole Commission miscalculated his offense behavior rating. It is a well-settled general rule that “a federal appellate court does not consider an issue not passed upon below.” Pell v. Azar Nut Co., 711 F.2d 949, 950 (10th Cir.1983) (quoting Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976)). Although a court might bend this rule in the interest of fairness to avoid injustice or if “the proper resolution is beyond any doubt,” id. (quoting Singleton v. Wulff, 428 U.S. at 121, 96 S.Ct. at 2877), the Parole Commission correctly computed Dal-lis’s parole eligibility date. Therefore, it is not unfair for us to refuse to review his offense severity rating because:
even if the Commission were to rate his offense in a lower category, with corresponding lower guideline, he still would not be eligible for release until he had served 80-months_ [Assigning him a lower offense severity would not change his release date.
Appellee’s Brief at 10.
In sum, the amended penalty statute applies to Dallis’s Count 3 sentence. Pursuant to this statute, the Parole Commission correctly computed Dallis’s parole eligibility date. The district court, therefore, properly dismissed Dallis’s petition for habeas corpus relief.
We AFFIRM.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
. 18 U.S.C. §§ 4201-4218 (1988), repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 218(a)(5), 98 Stat.1937, 2027, apply for five years after November 1, 1987, to individuals who committed offenses prior to November 1, 1987. 18 U.S.C. §§ 4201-4218 (1988).
. As a whole, the CCCA had no effective date provision and so it became effective upon enactment, "except to the extent that specific provisions of the CCCA otherwise provide." Romano v. Luther, 816 F.2d at 837.
. See, e.g., Norwood v. Brennan, 891 F.2d 179, 181-82 (7th Cir.1989) ("SRA transition provisions [including] § 235 were effective immediately”); Romano v. Luther, 816 F.2d at 839 (CCCA Ch. II, § 235(b)(3), the “winding up" provision, takes effect on October 12, 1984). Other parts of the CCCA such as the Bail Reform Act of 1984, Pub.L. No. 98-473, §§ 202, 203, 98 Stat.1976, 1976 (codified as amended at 18 U.S.C. §§ 3141-3150 (1988)), also became effective on October 12, 1984. United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985); see also United States v. Shaffer, 789 F.2d 682, 686-87 (9th Cir.1986) (CCCA amendments to 18 U.S.C. § 3731 (1988) became effective October 12, 1984).
. Criminal Law and Procedures Technical Amendments Act of 1986, Pub.L. No. 99-646, § 35, 100 Stat. 3592, 3599. The Sentencing Reform Act, Sec. 212(a), repeals certain United States Code Title 18 sections and substitutes new chapters to effect the new Sentencing Reform Act, codified as amended at 18 U.S.C. §§ 3551-3559 (1988).
. Naturally, a regulation may be out of step with a statute it is intended to enforce for a period after the statute is amended and before the corresponding regulation is likewise amended. Even if the regulations which were temporarily out-of-step with the statute applied, as Appellee notes "offenders have fair warning that the guidelines governing parole determinations are subject to change and a prisoner does not have any expectation of a particular parole system.” Appellee’s Brief at 9-10; see Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Yamamoto v. United States Parole Comm’n, 794 F.2d 1295, 1299-1300 (8th Cir.1986); Inglese v. United States Parole Comm’n, 768 F.2d 932, 940 (7th Cir.1985); Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir.1982).
.Goode v. Markley, 603 F.2d 973, 976-77 (D.C.Cir.1979) cert. denied, 444 U.S. 1083, 100 S.Ct. 1039, 62 L.Ed.2d 768 (1980); Walker v. J.C. Taylor, 338 F.2d 945, 945-46 (10th Cir.1964).
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
In the Matter of JOHN RICH ENTERPRISES, INC., a Delaware corporation et al., Debtors-Appellee. Emanuel Fields, Claimant-Appellant.
No. 72-1514.
United States Court of Appeals, Tenth Circuit.
June 27, 1973.
William G. Fowler, Salt Lake City, Utah, for debtors-appellee.
M. Emanuel Fields, New York City, pro se, claimant-appellant.
Before PICKETT, SETH and MC-WILLIAMS, Circuit Judges.
PICKETT, Circuit Judge.
The issue presented by this appeal arises out of a claim for attorney fees wherein several corporations with common directors and officers sought a reorganization under Chapter X of the Bankruptcy Act. The district court approved the claim in part as it applied to the corporation for whom the legal services were rendered, but entered judgment against claimant Fields for recovery of $20,000 of a total of $30,000 which had been paid by one of the other corporations. Limiting his appeal to the money portion of the judgment, Fields contends that the payment was authorized and was later approved by formal action of the board of directors.
John W. Rich had patents or applications for patents for a water bumper device and for a product described as a television or movie chair. John W. Rich Manufacturing Company, a California corporation, was created for the purpose of manufacturing and distributing the water bumper product. The distribution was accomplished by the sale of franchises throughout the United States and abroad. International Movie Chairs, Inc. (I.M.C.), a California corporation, was* formed to promote the manufacture and sale of the television or movie chair device and its funds were raised from public investors. The directors and officers of these two corporations were the same and their businesses were conducted in the same building in Sacramento, California, and generally by the same employees.
Through an arrangement between the two corporations the Rich Manufacturing Company, for an agreed consideration, manufactured the chairs for I.M.C. Financial difficulties developed in the water bumper business. To overcome these difficulties the board of directors of the manufacturing company decided to form John W. Rich Enterprises, Inc., a California corporation, for the purpose of eliminating the franchise operation by substituting stock of the new corporation for the franchises and to raise additional funds by a public offering of stock. This project failed and C. Allen Elggren, a Salt Lake City lawyer who was a director, officer and general counsel for all the corporations, recommended that appellant Fields, a New York attorney and expert in the field of corporate financing, be employed to obtain the necessary authority for a public offering of stock in John W. Rich Enterprises, Inc. of California.
In April, 1969, Fields met with the board of directors of John W. Rich Enterprises, Inc. in Sacramento, California. At this meeting Fields agreed to undertake the task of obtaining the necessary authority for a public offering of securities in John W. Rich Enterprises, Inc. for a fee not to exceed $50,000, of which $10,000 was to be paid immediately. The offer of employment was accepted by the board, and upon return to Salt Lake City Elggren delivered a cheek to Fields for $10,000 drawn upon the account of I.M.C.
It was determined that the better procedure was to organize a Delaware corporation under the name of John W. Rich Enterprises, Inc. and to file the necessary information with the Securities Exchange Commission for authority to sell publicly the stock of the Delaware corporation. The new corporation was created and Fields proceeded to obtain the required material for SEC approval. Fields also circularized the holders of the water bumper franchises notifying them of the proposed plan to exchange stock for franchises. During the course of these activities and at the suggestion of Elggren, Fields billed I.M.C. for additional attorney fees, and through cheeks drawn by Elggren, I.M.C. paid $20,000 over and above the original $10,000.
The SEC brought a federal court action in California against the corporations, Fields and others, charging violations of the federal securities laws. A consent decree was entered in this case enjoining the activities of John W. Rich Enterprises, Inc. in regard to its securities. Apparently as an outgrowth of the consent decree, all of the Rich corporations, including I.M.C., then were joined in Chapter X Bankruptcy proceedings instituted in the State of Utah seeking an acceptable reorganization. It was in these proceedings that Fields filed a claim for additional attorney fees. The trustee denied the claim and sought recovery of the $30,000 paid to Fields from the funds of I.M.C.
The validity of Fields’ claim and the trustee’s counterclaim was tried in the United States District Court for the District of Utah. The trial court’s finding that there was no agreement, express or implied, for performance of legal services for I.M.C. by Fields and that no professional services were rendered for and on behalf of that corporation by Fields is sustained by the evidence. The testimony of Fields and Elggren was that Fields had not been employed by I.M.C. and performed no service for it. The record is barren of evidence that I.M.C. received any consideration or benefit from the work of Fields. On this evidence the court held that the payments to Fields by I.M.C. were unauthorized and ultra vires acts of that corporation. The counterclaim for the original $10,000 payment was disallowed on the basis that the trustee was estopped to recover that amount and judgment was entered in favor of the trustee for later payments totaling $20,000. The claim of Fields as against John W. Rich Enterprises, Inc. (Delaware and California) was approved in part.
I.M.C. is a corporation separate and distinct from the other Rich corporations and created for different purposes. Its assets were obtained from different sources. It is the general law, as well as that of California and Utah, that in the absence of statute or corporate charter provision a corporation cannot divert its property by gift or by indirect means without a consideration or benefit to the corporation, and such acts cannot be ratified by the board of directors. In Knox v. First Security Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952), this court said:
It is well settled in Utah and elsewhere that a corporation cannot bind itself as guarantor or otherwise to discharge an obligation solely for the benefit of another, unless that be one of the purposes for which the corporation was organized. In the absence of a statute or a provision in its charter authorizing it to do so, an undertaking on the part of a corporation to discharge the obligation of another in which it has no interest and from which it derives no benefit is ultra vires and therefore unenforceable. Tracy Loan & Trust Co. v. Merchant’s Bank, 50 Utah 196, 167 P. 353; Louisville, New Albany & Chicago Railway Co. v. Louisville Trust Co., 174 U.S. 552, 19 S.Ct. 817, 43 L.Ed. 1081; Williams v. Sawyer Bros., 2 Cir., 45 F.2d 700; Pantaze v. Murphy, 5 Cir., 54 F.2d 895, certiorari denied, 287 U.S. 599, 53 S.Ct. 10, 77 L.Ed. 522. And it is elementary that unless authorized by statute or effective charter provision expressly creating the power, a corporation organized solely for conventional business? or commercial purposes may not alien its property by gift or indirect channels of diversion without consideration and not in furtherance of its pecuniary interests. 6 Fletcher Cyclopedia Corporations, §§ 2938, 2939. The alienation or disposition of property of a corporation in that manner constitutes a violation of the rights of the stockholders and is ultra vires.
See also, McCormick v. Market Bank, 165 U.S. 538, 17 S.Ct. 433, 41 L.Ed. 817 (1897); S. E. C. v. Insurance Securities, Inc., 254 F.2d 642 (9th Cir.), cert. denied, 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958); Knox v. First Security Bank of Utah, 206 F.2d 823 (10th Cir. 1953); Elliott v. Federal Home Loan Bank Board, 233 F.Supp. 578 (S.D.Cal.1964), rev’d on other grounds, 386 F.2d 42 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1260, 20 L.Ed.2d 161 (1968); Burt v. Irvine Co., 237 Cal.App.2d 828, 47 Cal.Rptr. 392 (1965); Elggren v. Woolley, 64 Utah 183, 228 P. 906 (1924) ; 2 Fletcher Cyc.Corp. § 752 (Perm.Ed. 1969); 7 Fletcher Cyc.Corp. §§ 3426, 3428 and 3432 (Perm.Ed.1964).
Finding no error, we affirm the judgment.
. In April of 1969 approximately 2,500 franchises had been sold.
. The California Corporations Commissioner held this circulation to be illegal and issued a cease and desist order.
. After the institution of the federal proceeding by the Securities Exchange Commission, the board of directors of I.M.C. adopted a resolution ratifying all of the payments to Fields.
. Of the various corporations, I.M.C. was the only one that had any liquid assets, and those assets were derived from public investors in that corporation.
. With reference to the ratification resolution, Exhibit 5-1, Elggren testified:
THE COURT: Then I can’t understand this recitation in 5-1 [Exhibit 5-1 is the resolution of the board of directors ratifying the payment to Fields], just before the Court that we’ve been discussing:
“Resolved, that actions of the officers in paying over the following funds to Emanuel Fields for anticipated Securities and Exchange work on behalf of the corporation and John Ricli Enterprises as sot forth above and are hereby ratified.”
Now, just before that, as above stated, it is recited that “The chairman — ” That would be you, wouldn’t it?
THE WITNESS: Yes.
THE COURT : And then : “ — stated on the 29th of April 1969, there had been certain funds paid over to Emanuel Fields, attorney at law, in connection with a proposed filing of registration statement on behalf of John Rich Enterprises, Inc., and a separate registration statement on behalf of International Movie Chairs — ”
Was that true that there were funds paid over for a separate registration statement on behalf of International Movie Chairs, or was that just a check to try to justify this payment?
THE WITNESS: Well, as I — your Honor, I was stating that with respect to International Movie Chairs, there had been contemplated, and if these things had gone along the way—
THE COURT: But in the April conversation it was suddenly, “No funds paid over for any services to International Movie Chairs”?
THE WITNESS: No.
THE COURT: Why does this appear in this recitation?
THE WITNESS: I don’t — I can’t give you an answer.
THE COURT: It’s just sort of a cloak or a mask to conceal what actually occurred ; is that true?
THE WITNESS: The purpose of it, of course, was to ratify at least the general acts of authorization that—
THE COURT: But there couldn’t be a ratification if there were a dishonest disclosure or an inaccurate disclosure, could there?
THE WITNESS: That’s probably right. That’s right.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Vance L. WOOD, Appellant, v. UNITED STATES of America, Appellee.
No. 21496.
United States Court of Appeals District of Columbia Circuit.
Jan. 19, 1968.
Mr. Verginald L. Dolphin, Washington, D. C. (appointed by the District Court)' was on the brief for appellant.
Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief for appellee.
Before Burger, Leventhal and Robinson, Circuit Judges, in Chambers.
PER CURIAM:
Appellant was indicted for housebreaking, assault with a dangerous weapon, and robbery, and is awaiting trial on these charges. A judge of the Court of General Sessions, acting on a Bail Agency report and recommendation, denied release on personal recognizance and set bail at $10,000. That order was reviewed pursuant to 18 U.S.C. § 3146(d) (Supp. II, 1965-66) by another General Sessions judge, the first being unavailable, and the $10,000 bail requirement was kept. The following reasons were given:
“Well, this is a very serious matter; robbery at gun point. I don’t think there is sufficient showing here for me to reduce the bond in this case, the defendant being a user of narcotics for a period of fifteen years. I think it’s been my experience that narcotics users are not too reliable, not too credible. I know he has several convictions of narcotics: in 1963 he was convicted of the Harrison Narcotics Act and received four years. He is not employed, he has lived on and off for a period of one year with his mother, father and two brothers, which doesn’t give him too much stability. Based on his past record and insufficient community ties, and the fact that he is a narcotics user, I’ll not change the conditions of release.”
Following the proper statutory procedure, appellant then moved the District Court to exercise its discretion to amend the conditions of release, and to grant release on personal recognizance. This the District Judge declined to do, although he did lower bail from $10,000 to $5,000. Appellant appeals that order, as he is totally without funds and cannot raise that amount any more than he can $10,000.
The Government urges that the District Judge’s order is not .ripe for review by this court pursuant to 18 U.S.C. § 3147(b) (Supp. II, 1965-66), contending that appellant must first avail himself of the opportunity of review under 18 U.S.C. § 3146(d) (Supp. II, 1965-66), giving the District Judge who amended the order opportunity to give written reasons for so doing, and for continuing the denial of release on personal recognizance. We think this contention plainly foreclosed by the language of 18 U.S.C. § 3147(b) (Supp. II, 1965-66). Subsection (b) grants a right of appeal to persons detained after either “(1) a court denies a motion under subsection (a) to amend an order imposing conditions of release,” (in which case twenty-four hour review is required in accordance with the language of § 3147 (a), or “(2) conditions of release have been imposed or amended by a judge of the court having original jurisdiction over the offense charged * * Appellant comes within (b) (2), and no requirement exists that written reasons be sought prior to appellate review.
Turning to the merits, the Government contends that the District Judge’s order is “supported by the proceedings below,” and should be affirmed. On the state of the record before us we believe it appropriate, in the interest of justice and in view of the recent bail law, to remand the case for further consideration.
The Bail Reform Act creates a strong policy in favor of release on personal recognizance, and it is only if “such a release would not reasonably assure the appearance of the person as required” that other conditions of release may be imposed. Even then, the statute in 18 U.S.C. § 3146 creates a hierarchy of conditions, one of the least favored of which is a requirement of bail bond. In considering what, if any, conditions shall be imposed the judge shall consider various factors relevant to the probability of flight, and one factor is “his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.” While we are informed by counsel that appellant has always appeared in connection with prior criminal proceedings against him, and there have been at least twelve over the past thirteen years, the record is silent as to whether appellant was on conditional release and appeared voluntarily in those proceedings. It is that silence which troubles us.
We do not think that under the Bail Reform Act a determination that money bail is required is appropriate unless the court at least ascertains the conduct of defendant when previously released on conditions, and whether the defendant previously abided by conditions imposed on him in prior proceedings. Consistent appearance when flight is possible is an important indicator of whether a defendant is likely to appear once again. Here, the General Sessions judge gave as his reason for denying recognizance and maintaining bail, a belief, no doubt amply justified by experience, that narcotic users are generally untrustworthy. But'in matters of bail, “each accused is entitled to any benefits due to his good record,” Stack v. Boyle, 342 U.S. 1, 9, 72 S.Ct. 1, 6, 96 L.Ed. 3 (1951) (Opinion of Jackson, J.). While appellant’s record is by no means felicitous, it may be that he personally poses little risk of flight. We see no reason why there should not be included in the record before the court, as a matter of course, information concerning any prior conditional releases and subsequent appearance, information we think is clearly contemplated by the statute. If it is not possible to obtain any such information, one way or the other, that should be set forth.
This is by no means a ruling that release on personal recognizance must be allowed if a defendant, or the appellant before us, has consistently adhered to the terms of past releases. Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck. Here there were many considerations arguing against release on recognizance — the offense is serious, appellant is unemployed, has no stable family life, and is a narcotics user with a criminal record. However, while imposition of bail might well be properly ordered after our remand, we think any such decision will be based on an approach more in keeping with the statutory mandate.
Remanded.
. The Government suggests that this appeal might not be timely because it was not taken within ten days, as required by Rule 37 of the F.R.Crim.P. We need not consider the applicability of Buie 37, or any related problems of finality in this case. The same District Judge whose order is appealed herein granted appellant petition for leave to appeal in forma pauperis. As 18 U.S.C. § 3146(e) provides that the Judicial Officer imposing conditions of release may at any time amend Ms own order, the Judge’s granting of an appeal can be taken as a reaffirmance of his prior order, and, in that event, under any standard, appeal is timely.
. 18 U.S.C. § 3147(a) (Supp. II, 1965-66).
. Shackleford v. United States, 127 U.S.App.D.C. 285, 383 F.2d 212 (1967).
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_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
U. S. FIBRES, INC., a Michigan Corporation, Plaintiff-Appellant and Cross-Appellee, v. PROCTOR & SCHWARTZ, INC., a Pennsylvania Corporation, Defendant and Third-Party Plaintiff-Appellee and Cross-Appellant, v. U. S. EQUIPMENT COMPANY, a Michigan Corporation Third-Party Defendant-Appellant and Cross-Appellee.
Nos. 73-2091 to 73-2093.
United States Court of Appeals, Sixth Circuit.
Jan. 17, 1975.
William H. Merrill, Detroit, Mich., Paul L. Nine, Carl J. Marlinga, Warren, Mich., for plaintiff-appellant.
Neill T. Peters, F. R. Damm, Detroit, Mich., for defendant-appellee.
Before CELEBREZZE and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
LIVELY, Circuit Judge.
In this diversity action the purchasers of manufacturing equipment sued the seller-manufacturer for damages. The plaintiffs sought to recover for alleged breach of express and implied warranties, fraud and negligence. In its counterclaim the defendant sought recovery on an account, which was undisputed, and damages allegedly incurred by it as the result of fraudulent misrepresentations of the plaintiffs. Following two lengthy hearings the district court entered judgment in favor of the defendant on all claims of the plaintiffs and on the stated account. The counterclaim based on fraud was dismissed. We affirm.
A complete statement of the facts and legal issues as developed in the district court is set forth in its opinions which are reported at 358 F.Supp. 449 and 358 F.Supp. 467. In dealing with the appeal we will attempt to avoid unnecessary repetition of matters covered in the reported opinions. The plaintiffs will be referred to as Fibres and the defendant as Proctor. The Uniform Commercial Code (UCC) applies to the transactions between the parties and they provided that the law of Pennsylvania governs the construction and interpretation of their written agreements. The various issues on appeal will be treated separately, though briefly, in view of the extended treatment of each by the district court.
The two contracts clearly contained an express warranty against defects in materials or workmanship. Proctor spent large sums in replacing and reworking portions of the equipment which were admittedly defective. However, Fibres maintains that other express warranties were created by detailed description of the ovens in the typewritten portion of the contracts and that these warranties could not be excluded by inconsistent disclaimer language appearing in later printed portions of the contracts. This argument overlooks the fact that both contracts, in the typewritten portions and before the description of the ovens, under the heading PERFORMANCE, provided that “in view of the variables present effecting (sic) the capacity of the machine, no guarantee can be extended.” Immediately following this disclaimer was a statement that “the Company’s standard warranty outlined later in this contract does apply.” The printed warranty clause, identical in both contracts, was as follows:
LIABILITY CLAUSE: The Companys liability hereunder shall be subject to the following:
General:
1. The Company warrants the machine against defects in materials or workmanship, but makes no other warranties, express or implied (except as set forth under “Patents”) unless the word “guarantee” is used. Warranties of merchantability or of fitness for a particular purpose or arising from a course of dealing or usage of trade, are specifically excluded. The Purchaser agrees that any affirmations of fact, description of the machine or sample or model machine herein referred to, whether or not the same relate to production or capability of the machine to perform, are not the basis of this contract, unless the word “guarantee” is used in connection therewith, in which case the same shall be express warranties.
Between the two disclaimers was the description upon which Fibres relies for its claim of express warranties. In the first contract the pertinent language was: “This conveyor is especially designed to hold a tolerance of ± 1/32" across the width of the batt, based on a 30 pound per square foot compressive force.” The second contract stated that —-“This conveyor is especially designed with a deflection tolerance of ± 1/32" across each conveyor plate. This deflection is further based on a uniformly distributed load of 30 pounds per sq. ft.” It is provided in UCC § 2-313(l)(b) that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Exclusion of express warranties is permissible under § 2 — 316(1) of the UCC, which provides that language or conduct creating warranties and that tending to negate them “shall be construed wherever reasonable as consistent with each other. . . . ”
If the machinery involved had been tried and proven in the manufacturing process in which Fibres intended to employ it, or if it had been sold by specification alone, the description might be held to create an express warranty. S — C Industries v. American Hydroponics System, Inc., 468 F.2d 852 (5th Cir. 1972). However, the evidence fully supports the finding of the district court that the parties were attempting to put together a combination of machinery to fabricate a product by an “unproven process.” Furthermore, the general manager of Fibres, Mr. Steuernagel, was fully aware of the “variables” referred to in the disclaimer of guarantee of performance. The language of description referred only to the expectations of the designers and in no way guaranteed that these expectations would be met. Furthermore, there is substantial evidence that executives of Fibres who participated in the purchase of the equipment never expected it to produce finished pads having a thickness tolerance of ± 1/32 inch across their width. Thus, this descriptive language was not “part of the basis of the bargain.” UCC § 2-313(l)(b). The district court correctly determined that the language which excluded an express warranty was not inconsistent with the language of description, UCC § 2-316(1), and gave it effect.
Fibres contends that it was entitled to recover under implied warranties of fitness for a particular purpose and of merchantability. An implied warranty of fitness for a particular purpose exists only “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods . . ..” UCC § 2-315. There is abundant factual support in the record for the district court’s finding that Fibres, acting through its agent Steuernagel, did not rely on Proctor’s skill or judgment in selection of the equipment with which it proposed to make dry resinated pads by Steuernagel’s new “secret process.” Therefore, there could be no implied warranty of fitness.
Reliance upon the seller is not a requirement in the case of implied warranties of merchantability. If the seller is a “merchant,” such a warranty is implied in every contract for the sale of goods “[u]nless excluded or modified.” UCC § 2-314. This warranty may be excluded only by language which mentions merchantability and is conspicuous. UCC § 2 — 316(2). The exclusion in this case, which was contained in the previously quoted liability clause, used the word “merchantability.” Thus, the question is whether this disclaimer was “conspicuous” as defined in UCC § 1 — 201(10):
(10) “Conspicuous”: A term or clause, is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous.” Whether a term or clause is “conspicuous” or not is for decision by the court.
Fibres relies principally on Boeing Airplane Co. v. O’Malley, 329 F.2d 585 (8th Cir. 1964), which applied Pennsylvania law in holding that a disclaimer “in the same color and size of other type used for the other provisions” of a contract was not conspicuous. Id. at 593. In that case the court was dealing with a warranty of fitness for a particular purpose rather than one of merchantability. A fundamental question was the meaning of “as is” in the dealings between the parties. In the present case the heading under which the disclaimer appeared met the requirement of § 1— 201. Neither in Boeing, supra, nor in the Pennsylvania cases relied on by Fibres, is it clear that the court considered contracts in which a heading in bold-type capital letters of the same size as all other headings, appeared at the beginning of the exclusion clause. We do not read these cases as holding the Pennsylvania rule to be that there can be no disclaimer as a matter of law if type of the same color and size is used in the text even though the heading is in capital letters.
It is significant that the official UCC comments under Section 1 — 201(10) state—
10. “Conspicuous.” New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.
As we have pointed out, near the beginning of each contract, in the typed portion where guarantee of performance was excluded, there was a reference to “the Company’s standard warranty outlined later in this contract.” From exhibits introduced by Proctor it is clear that the liability clauses of the contracts were scrutinized with care by Fibres. One examining these contracts was put on notice by the early disclaimer of performance that only the standard warranty of Proctor applied. The testimony of Fibres executives was that they were familiar with the contents of the printed portions of the contract. There was no surprise. Knowing that they were employing an untried combination of components, which had been successfully operated separately but not together, in an attempt to produce a familiar product by a new process, the principals of Fibres could not realistically have expected Proctor to extend the warranties which they now claim. Under the facts of this case the district court correctly held that attention could reasonably be expected to be called to the disclaimer. Conspicuousness is a question of law for the court. Adams Van Service, Inc. v. International Harvester Corp., Pa. Court of Common Pleas, Allegheny County (1973), 14 UCC Rep. Serv. 1142.
In denying Fibres’ claim based on fraud the district court found that Proctor made no material misrepresentations of fact. Upon conflicting evidence the court determined that it had never been the intention or understanding of the parties that Proctor guaranteed that the equipment would produce pads of uniform thickness. Having had no experience with this particular operation, Proctor could only give an opinion as to how the equipment would perform. Furthermore, the claim of Fibres that Proctor concealed its knowledge from Fibres that the equipment would not produce pads of uniform thickness is not borne out by the record. Fibres officials Clapp and Steuernagel testified that Proctor’s chief inspector told them before production began that he did not believe it was possible to maintain a tolerance of 1/32 inch across the pads with the type conveyor that was being used. When Christianson, a sales representative of Proctor, referred to this tolerance it was never with reference to the finished product. He described the success of the dryer in a different procedure and predicted similar results using Steuernagel’s “secret process.” This and other evidence relied upon by Fibres fell far short of establishing the elements necessary for proof of fraud.
All of the foregoing issues were decided by the district court on a motion for an involuntary dismissal under Rule 41(b), Fed.R.Civ.P. The court incorporated findings of fact in its opinion granting the motion, and we apply the “clearly erroneous” standard of review prescribed by Rule 52(a). Though there was a great deal of conflict in the testimony of witnesses, the findings of the district court are supported by substantial evidence and may not be set aside by this court. Furthermore, no erroneous application of rules of law to these facts has been demonstrated by Fibres.
Following the second hearing the district court made a finding of no actionable negligence on the part of Proctor. The recitation by the court of numerous problems encountered by Fibres in attempting to produce satisfactory batting is not inconsistent with this finding as Fibres contends. At the request of Fibres these problems were treated as defects in materials or workmanship and were remedied by Proctor at its own expense. Once these extended repairs were completed the ovens operated properly until Fibres went out of business. In finding that Proctor was not negligent either in design or manufacture the District Judge made a detailed analysis of the design and manufacture of the equipment. The finding is not clearly erroneous and may not be set aside by this court.
Having found no negligence on the part of Proctor the court had to consider the issue of contributory negligence only as it related to Proctor’s counterclaim. The evidence clearly supports the finding that as early as June, 1966 Fibres seriously overloaded the equipment. However, the court also found that there was no proof that either party realized at the time that overloading was occurring. It therefore held that Fibres had no duty to advise Proctor of this fact. Since Proctor’s counterclaim was based on the claim that Fibres’ failure to inform it of the overloading constituted fraud, no recovery was allowed. In view of these holdings it is clear that no damages were withheld from Fibres or awarded to Proctor by the district court on the basis of its findings with respect to overloading the equipment. Thus the extensive discussion in briefs of the existence and extent of overloading is immaterial in view of our conclusion that the district court’s findings on the negligence claim and the counterclaim for fraud must stand.
This court’s determination that the district court correctly denied any recovery by Fibres renders extended discussion of the clauses which limited damages under the contracts unnecessary. However, we note that UCC § 2-719 permits limitation or exclusion of consequential damages so long as it is not unconscionable. Unconscionability rarely exists in a commercial setting involving parties of equal bargaining power. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300 (S.D.N.Y.1970), aff’d, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971). See also Cryogenic Equipment, Inc. v. Southern Nitrogen, Inc., 490 F.2d 696 (8th Cir. 1974); K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970), 7 UCC Rep.Serv. 679.
The record supports the district court’s finding that “ . . . there was uneven resin distribution in much of plaintiff’s product.” Such uneven resin distribution explained the lack of uniform thickness in the pads, according to credited testimony. Thus, even if it were held that express and implied warranties existed with respect to the thickness tolerance of the pads or that Proctor did misrepresent the capability of the equipment to produce pads of uniform thickness, Proctor’s derelictions would not have been the cause of Fibres’ claimed losses. The one component of the entire production line that was clearly the responsibility of Fibres was the “lawn fertilizer spreader” which introduced dry resin into the cotton fibres to produce dry resinated pads. As the district court noted, the dryer “only receives what is fed into it.” If Steuernagel’s method of introducing the resin in this manner failed to produce an even distribution and this failure sufficiently explains the uneven thickness of the finished pads, the deficient result cannot be charged to Proctor under any theory of law.
Separate appendices were filed by the parties to this appeal. Rule 30 of the Federal Rules of Appellate Procedure provides for a single appendix. Furthermore, the brief of appellants exceeded the length permitted by Rule 28(g), Fed. R.App.P. Failure to follow these rules results in an unwarranted burden on the court.
Affirmed on appeal and cross-appeal. Each party will bear its own costs.
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_state
|
03
|
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".
BRANDON v. UNITED STATES.
No. 11814.
United States Court of Appeals Ninth Circuit.
Aug. 6, 1951.
T. J. Brandon, Jr., in propria persona.
J. Earl Cooper, U. S. Atty., Anchorage, Alaska, for appellee.
Before DENMAN, Chief Judge, and HEALY and ORR, Circuit Judges.
DENMAN, Chief Judge.
Appellant, under the assumed name of Will Key Jefferson, was charged in count I of an indictment with having forged a check purported to have been signed by one Wosdon P. Lang, and in count II with having uttered and published the check with intent to defraud. He was found guilty and sentenced to three years’ imprisonment on each count, the sentences to run concurrently. He appeals to us. On such an appeal, if either sentence is held valid, we need not consider the other. Danziger v. United States, 9 Cir., 161 F.2d 299, 301.
Count I alleges, concerning the Lang check that Brandon, then named as Jefferson, did “knowingly, wilfully, unlawfully, fraudulently, and feloniously, with intent to injure and defraud, falsely make, forge, and counterfeit a check for the payment of money on the People’s National Bank of Paducah, Kentucky, the tenor and purport whereof was as follows: * * * said signature written on the face of said check purporting to be the genuine signature of Wosdon P. Lang as maker thereof.”
Brandon contends this count fails to charge the crime of forgery as stated in the Alaska statutes, because the name of the party intended to be defrauded is not alleged. There is no merit to this contention. The indictment substantially states the offense of Section 4856 of the Compiled Laws of Alaska, 1933, providing, so far as pertinent: “If any person shall, with intent to injure or defraud anyone, falsely make * * * forge, counterfeit * * * [any] check * * * or shall, with such intent, knowingly utter or publish as true and genuine any such false * * * forged, counterfeited * * * instrument * * *, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than two nor more than twenty years.”
That the name of the person intended to be defrauded need not be alleged appears from Section 4861 providing: “In any case where the intent to injure or defraud is necessary, by the provisions of this chapter, to constitute the crime, it shall be sufficient to allege in the indictment therefor an intent to injure or defraud without naming therein the particular person or body corporate intended to be injured or defrauded, and on the trial of the action it shall not be deemed a variance, but be deemed sufficient, if there appear to be an intent to injure or defraud the United States, or any state, territory, county, town, or other municipal or public corporation, or any public officer in his official capacity, or any private corporation, copartnership, or member thereof, or any particular person or persons.”
A brief history of Sections 4856 and 4861 Compiled Laws of Alaska 1933 reflects that the same were adopted as a part of the penal code for the Territory of Alaska by Act of Congress March 3, 1899, 30 Statutes at Large, 1263-1266. These provisions were taken from the laws of Oregon, October 19, 1864 and are presently embodied in the Oregon Compiled Laws, Volume 3, Penal Code as Sections 23-560 and 23-568. With this legislative history in mind, it would appear that the decisions by the Supreme Court of Oregon should be given controlling effect.
The Supreme Court of Oregon has held that an indictment is sufficient where it alleges an intent to injure or defraud without naming therein the particular person intended to be injured or defrauded. State v. McElvain, 35 Or. 365, 58 P. 525.
Appellant contends that the court erred in denying appellant’s motion for a change of venue. A review of the evidence shows its support of the court’s decision.
Brandon’s forgery of the check was proved by the evidence before the jury of the Lang check itself and three signatures of Brandon, using the name Will Key Jefferson, and the testimony of a competent handwriting expert, one Appel, that Brandon signed Lang’s name. Appellant contends that Appel’s testimony is invalid because he had seen other copies of the Jefferson signature, but the testimony is clear that what Appel relied on were the three Jefferson signatures in evidence. There is no merit in this contention.
Appellant contends that at the trial there was no evidence to show an intent to defraud anyone in making the check. Since the check was shown to have been forged by appellant, his use of the moneys obtained from one Cole, credit manager of the Northern Commercial Company, warrants an inference by the jury of his intent to defraud in forging the check. There was no error in denying appellant’s motion for a judgment of acquittal.
Appellant assigns error in several instructions given and to the refusal to give another requested by the appellant. In none of these did appellant state the grounds of his objections in compliance with Rule 30 of Federal Rules of Criminal Procedure, 18 U.S.C.A. However, we have examined appellant’s contentions and find them without merit, and that the appellant was not prejudiced by the court’s action respecting the instructions.
Appellant contends that the evidence of forgery of the check is entirely circumstantial and that it warrants as much the inference of innocence as that of guilt, seeking to invoke the principle stated in our opinion in Paddock v. United States, 9 Cir., 79 F.2d 872, 876. There is no merit in this contention. The evidence of forgery, if believed by the jury, warranted only the inference of guilt.
At the trial, appellant testified the check was given him by Lang as a six months’ prepayment of rent on a lease to him of an apartment. It was in a building requiring some construction, and appellant needed the prepaid rent for that purpose. The check had on its face a notation that it was for an amount equal to the six months’ rental plus other charges there stated. It is not questioned that appellant had made such an arrangement with another tenant for such an advance.
At the trial the lease was not produced. After the verdict, appellant moved for a new trial on the ground of newly discovered evidence, offering duplicate originals of the lease with Lang, which the court declined to consider. Reserving our jurisdiction of the appeal, we ordered the district court to consider and dispose of the motion.
At the hearing on the motion, the duplicate copies of the lease were offered in evidence. They were for a rental corresponding with the notation on the check. The court denied the motion. It found that the leases were known by the appellant to exist at the time of the trial and that he then made no attempt to find them. In so doing, the court was entitled to consider Brandon’s testimony, having in view his several prior criminal convictions.
On appellant’s motion, there was produced the report of a handwriting expert of the Federal Bureau of Investigation on photostatic copies of the leases and of the check. It showed that the handwriting of the signature Wosdon P. Lang on the check was unlike the handwriting of the Wosdon P. Lang on the copies of the leases. The photostatic enlargements of the two signatures on the two leases and the one on the check are before us. The Lang signature on the check seems a poor copy of those on the leases.
The motive for not producing them at the trial is apparent. The Lang signatures on the leases would have added weight to the testimony of the forgery based on the comparison of the check’s signature with that of Brandon’s handwriting. One cannot withhold such evidence at the trial and, being convicted, seek a second chance before another jury by then producing it.
We have stated the rule in such cases in Wagner v. United States, 9 Cir., 118 F.2d 801, 802. Speaking of the affidavits on such a motion for a new trial, we said: “We do not regard them as meeting the requirements, and particularly requirement (e) of Johnson v. United States, 8 Cir., 32 F.2d 127, 130. We quote from the opinion: ‘There must ordinarily be present and concur five verities, to wit: (a) The evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.’ ”
Even if the evidence had been newly discovered, it was not of such a nature that it probably would produce an acquittal.
The order denying the motion for a new trial and the judgment sentencing appellant on count I of the indictment are affirmed. For the reasons stated, the judgment on the concurrent sentence for the same period on count II is ignored.
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_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).
CENTRAL OF GEORGIA RY. CO. v. WATKINS.
Circuit Court of Appeals, Fifth Circuit.
February 10, 1930.
Rehearing Denied March 7, 1930.
No. 5626.
B. G. Earner and A. K. Merrill, both, of Dothan, Ala. (Farmer, Merrill & Farmer, of Dothan, Ala., on the brief), for appellant.
T. M. Espy, of Dothan, Ala. (J. M. Loflin, of Enterprise, Ala., on the brief), for appellee.
Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.
BRYAN, Circuit Judge.
Appellee recovered damages for personal injuries sustained by him in a collision between an automobile in which he was riding and ‘a passenger train of the appellant railroad company.
The declaration alleged that appellant was negligent in failing to give warning by bell or whistle as the train approached the crossing. The defense was based on pleas of not guilty and contributory negligence.
The collision occurred in a small town at a grade crossing, where the highway, extending north and south, and the railroad, extending east and west, intersect. Appellee was riding in the front seat of the automobile, on the right side, by invitation of its owner, who wasi driving it. The automobile approached the crossing from the north, and passed in front of an engine which was standing with steam up on the side track east of the highway, and about 60 feet north of the main line of the railroad company. After the automobile crossed the side track and got within about 30 feet of the main line, the view to the west was unobstructed, and at this point appellee saw the passenger train approaching from that direction. He called to the driver to “look out,” but the latter first looked to his left toward the engine, which was standing still on the side track, and apparently did not see the passenger train in time to avoid the collision. The automobile was proceeding at a slow rate of speed, and, according to some of the testimony, could have been stopped within a distance of 3 or 4 feet. According to witnesses for appellee, the inference could he fairly drawn that the bell was not rung or the whistle blown until just at the moment of the collision, though this was disputed by witnesses for appellant.
Error is assigned on the refusal of the court at the dose of the evidence to direct a verdict for appellant.
Whether proper warning was given of the approach of the train was a question for the jury; and, in our opinion, it was likeiwise a question for the jury whether appellee was guilty of contributory negligence. Contributory negligence of tbe owner and driver of the automobile, if it be assumed, cannot be imputed to appellee, who was riding in the car as a guest, or by invitation. Ordinarily, it is not the duty of one riding in an automobile by invitation to direct the movements of the driver, unless the former has knowledge of some danger that is not obvious or is unknown to the latter; but, even under such circumstances, the guest must exercise reasonable care for his own protection. Shearman & Redfield on Negligence, § 66 ; 20 R. C. L. 163; Huddy on Automobiles, §§ 820, 823; Wicker v. Scott (C. C. A.) 29 F.(2d) 807. It is suggested that it was appellees duty to jump out of the automobile in time to avoid the collision; hut the jury could well find that the time was too short for that, after it became apparent that a collision was inevitable.
Error is assigned on the refusal of the trial court to give certain requested special instructions in its charge to the jury. But they were fully covered by the court’s general charge.
Error is not made to appear by any of the assignments, and the judgment is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
SHEWMAKER et al. v. CAPITAL TRANSIT CO.
No. 8535.
United States Court of Appeals District of Columbia.
Decided May 29, 1944.
Mr. Justin L. Edgerton, of Washington, D. G, for appellants.
Mr. H. W. Kelly, of Washington, D. G, with whom Mr. R. E. Lee Goff, of Washington, D. G, was on the brief, for appellee. Mr. S. R. Bowen, of Washington, D. G, also entered an appearance for appellee.
Before MILLER, EDGERTON and ARNOLD, Associate Justices.
MILLER, Associate Justice.
The injuries complained of in this case resulted from a collision between two automobiles. Appellants, as plaintiffs in the trial court, contended that the accident was caused by the negligent operation of a streetcar owned and operated by appellee. The trial court denied motions to direct a verdict, which were made by appellee, first, at the close of appellants’ case and, again, at the close of all the evidence. After the jury had returned a verdict for appellants the court entered judgment for appellee upon a motion to set aside the verdict, made pursuant to Rule 50 of the Federal Rules of Civil Procedure. This appeal is from that judgment.
The rule applicable in the District of Columbia on a motion for a directed verdict, in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted; a mere scintilla of evidence is not sufficient; the question is not whether there is any evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party upon whom the onus of proof is imposed; the burden being upon the plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to support either element the motion should be granted. The same rule is applicable on a motion to set aside the verdict under Rule 50 of the Federal Rules of Civil Procedure.
While a verdict may properly be directed when there is no more than a scintilla of evidence, or none upon which a jury could properly proceed to find a verdict for the party upon whom the onus of proof is imposed, that was not the situation of the present case. The trial judge is to be commended for adopting the practice suggested by Rule 50; thus permitting a full trial and determination of the issues, instead of taking the case from the jury and necessitating, in case of reversal, a second bite or even successive bites at the cherry. However, if the trial judge thereafter enters judgment n. o. v., then, as well as when he directs a verdict, his action must be subjected to the test stated in the preceding paragraph. Unlike the situation which exists when the, judge acts as the trier of facts, the appellate court is required to balance the weight of the evidence against the judge’s determination and in favor of the jury’s determination. The question is, not whether there is sufficient evidence in the record to support the findings and decision of the judge, but whether there is evidence upon which reasonable men might differ as to negligence and other elements of liability; whether a jury of reasonable men could properly reach a verdict in favor of the party upon whom the/ onus of proof is imposed.
A careful examination of the record persuades us that the evidence presented questions appropriate for the jury’s determination and that its verdict should stand.
Reversed.
28 U.S.C.A. following section 723c.
Tobin v. Pennsylvania R. R., 69 App. D.C. 262, 263, 100 F.2d 435, 436; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380, and eases there cited.
Roberts v. Capital Transit Co., 76 U. S.App. 367, 131 F.2d 871. See Pessagno v. Euclid Inv. Co., Inc., 72 App.D.C. 141, 144, 112 F.2d 577, 580; Duncan v. Montgomery Ward & Co., 8 Cir., 108 F.2d 848, 852, modified on another point, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Jaggers v. Southeastern Greyhound Lines, Inc., 6 Cir., 126 F.2d 762.
Pennsylvania R. R. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 77 L.Ed. 819; Jackson v. Capital Transit Co., 69 App.D.C. 147, 148, 99 F.2d 380, 381.
Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253, 61 S.Ct. 189, 85 L.Ed. 147.
Munsey v. Webb, 37 App.D.C. 185, 188, affirmed, 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162; LeFoe v. Corby Co., 38 App.D.C. 54; Standard Oil Co. v. Allen, 50 App.D.C. 87, 267 F. 645; Washington, Alexandria & Mt. Vernon Ry. v. Lukens, 32 App.D.C. 442, 454.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_geniss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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".
Fielding M. McGEHEE, III, Appellant v. CENTRAL INTELLIGENCE AGENCY.
No. 82-1096.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1982.
Decided Jan. 4, 1983.
Katherine A. Meyer, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant.
John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., and Emilio Jaksetic, Atty., C.I.A., Washington, D.C., were on the brief, for appellee.
Before WRIGHT, EDWARDS and BORK, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Separate opinion concurring and dissenting in part filed by Circuit Judge BORK.
TABLE OP CONTENTS
Page
Introduction_____________________________ 1097
I. BACKGROUND _____ 1097
II. THE USE OP A TIME-OF-REQUEST
CUT-OPP DATE......—......... 1100
A. Applicable Law_________________ 1100
B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date......... 1102
C. The Reasonableness of the Agency’s Procedure in This Instance________ 1103
Page
III. THE REFERRAL PROCEDURE_____ 1105
A. “Agency Records” Covered by the Act.......................... 1105
B. Treatment of Documents Obtained From Other Agencies____________ 1109
IV. INVOCATION OP THE “INTELLIGENCE SOURCE” EXEMPTION.... 1112
CONCLUSION.............. ni4
HARRY T. EDWARDS, Circuit Judge:
We are asked in this case to decide several questions concerning the scope of the duties imposed on government agencies by the Freedom of Information Act (“FOIA” or “the Act”). The District Court granted appellee’s motion for summary judgment on the theories that appellee had conducted a sufficiently thorough search for documents subject to disclosure and had released to appellant all of the materials required by the Act. In reaching these conclusions, the District Court upheld as reasonable an an-publicized Central Intelligence Agency (“CIA” or “the agency”) rule which had the effect of limiting the FOIA search to materials in the agency’s possession on the date when appellant made his initial request for documents. This “time-of-request cut-off” policy was approved by the trial court even though the agency failed to disclose any documents to appellant until compelled to do so by an order of the court almost two and one-half years after the original time of request. The District Court also granted appellee’s motion to dismiss from the lawsuit all records in the possession of the CIA that had been obtained from the State Department or the Federal Bureau of Investigation (“FBI”). Finally, the District Court relied solely on affidavits submitted by the CIA in upholding the nondisclosure of a number of disputed documents under FOIA exemptions (1) and (3). Because we conclude that the District Court’s rulings were founded upon misinterpretations of applicable legal standards, we reverse and remand for further proceedings.
I. Background
The outcome of this case turns substantially upon nuances in its facts. Accordingly, the procedural background to this appeal will be described at some length.
Appellant McGehee is a free-lance journalist and a relative of three victims of the gruesome demise of the “People’s Temple” in Jonestown, Guyana. Many of the circumstances surrounding the Jonestown Tragedy are well known, indeed notorious. In November, 1978, Congressman Leo J. Ryan and a portion of his staff traveled to Guyana to investigate allegations of mistreatment of some of his constituents in the Jonestown religious community. On November 18, as they were about to board a plane to leave, Ryan, three representatives of the media, and one apparent defector from the community were shot and killed. Within hours, almost all of the more than 900 members of the Jonestown congregation, including its founder, Jim Jones, either committed suicide or were murdered.
Despite the extensive attention given the Jonestown Tragedy, the character of the People’s Temple religious community, the events leading up to the catastrophe, and the manner in which so many people died remain somewhat mysterious. Proceeding on the assumption that the CIA possesses recorded information that sheds light on these matters, McGehee, on December 6, 1978, filed the FOIA request that gives rise to this controversy. McGehee initially asked for documents relating to several aspects of the development and fate of Jim Jones’ congregation. On December 22, at the suggestion of a representative of the agency, he narrowed his request to records pertaining to the “Peoples Temple.”
The treatment accorded McGehee’s request during the following month is not entirely clear from the record. It appears that the agency’s Information and Privacy Division (“IPD”), the office that coordinates responses to requests for information, determined that two other divisions—the Directorate of Operations (“DO”) and the Office of Security (“OS”)—were the offices most likely to possess documents of the sort McGehee was seeking. Accordingly, those two divisions were “tasked”—i.e., asked to search for and identify relevant records. Each division apparently was instructed to confine its attention to documents received on or before December 22, 1978, the day McGehee’s request was finalized. Soon thereafter OS informed IPD that it had found no such materials. An initial search by DO, on the other hand, revealed the existence of responsive documents, but DO at this time appears not to have informed IPD of its findings. Nor does DO seem to have made any effort at this point to review or even to retrieve the identified documents. Meanwhile, IPD learned that a third division, the National Foreign Assessment Center/Office of Central Reference (“NFAC/OCR”), had completed a computer search in response to an earlier FOIA request very similar to McGehee’s (the “Douglas request”) and had identified relevant documents in the agency’s possession. However, no immediate effort was made to retrieve those documents either. Instead, McGehee’s request (which was marked with some kind of notation of the location of records that might prove responsive) was placed at the end of a “processing queue,” the CIA’s system for dealing with FOIA requests on a “first-in-first-out basis.”
This initial flurry of activity had subsided by mid-January, 1979. Between that time and December, 1980, the agency did virtually nothing about McGehee’s request. Beginning in March, 1979, McGehee periodically contacted the CIA, either directly or through counsel, to ascertain the status of his request. The agency provided him with no information regarding the steps it had taken and gave him no definite indication of when any responsive documents would be released. Never did the agency inform McGehee that it had adopted December 22, 1978 as a “cutoff date” for its searches.
On November 21, 1980, McGehee filed suit in the District Court seeking to compel the CIA to respond to his pleas. On March 3, 1981, the court set a deadline of May 5,1981, by which time the agency was to complete its processing of McGehee’s request, release all nonexempt responsive material, and submit a Vaughn index cataloging any withheld documents. Soon thereafter the court granted the agency’s motion for a protective order, shielding the CIA from discovery by McGehee. On May 5, in compliance with the court’s directive, the agency revealed (for the first time) that it possessed 84 documents responsive to McGehee’s request. It disposed of those materials as follows: 12 were released in full; 18 were released with substantial portions deleted; 26 were withheld; 28 were forwarded to other government agencies, from which the CIA had originally obtained them.
The last set of records is one of the hubs of this controversy. It is undisputed that, of the 28 “other agency” documents, 27 had originated with the State Department and one with the FBI. In accordance with its standard procedure, the CIA declined to undertake any kind of substantive review of the “other agency” records and instead sent them to the agencies that first compiled them to enable those agencies to determine whether any material was exempt from disclosure. McGehee has not submitted a FOIA request to either the State Department or the FBI, insisting that the CIA is required by the Act to evaluate and release the documents in question. Nevertheless, the State Department has voluntarily reviewed the 27 records that it originally created and has released a majority of them to McGehee. The fate of the FBI document does not appear from the record.
In the summer of 1981, McGehee accidentally learned, from a letter written by a representative of the CIA to a third party, that the agency had been treating the time of his original request as a cut-off date for its FOIA search. Moreover, comments made in that letter raised the possibility that the agency had limited its searches to files denominated “People’s Temple” and had not sought information under any closely related headings—e.g., the Reverend James Jones or Jonestown. See App. 191.
On January 19,1982, despite these revelations, the District Court issued final judgment in the case. The court denied McGehee’s motion for an in camera inspection of the withheld and edited documents to test the basis for the agency’s refusal to release them, granted the CIA’s motion to dismiss from the lawsuit the documents it had obtained from the State Department and FBI, and granted the CIA’s motion for summary judgment as to the remainder of the suit. This appeal followed.
II. The Use of a Time-of-Request Cut-off Date
McGehee’s first challenge concerns the CIA’s decision to limit its search to records in its possession on the date when his request was finalized. He points out that the agency did not disclose any documents to him until compelled to do so by an order of the District Court almost two and one-half years after his original request. Under these circumstances, he argues, the agency failed to discharge its statutory obligation when it retrieved and released only documents that originated with and were in the possession of the CIA during the first month following the events to which his request principally related.
A. Applicable Law
We begin by reviewing the legal principles that govern McGehee’s claim. First, it is well established that the adequacy of an agency’s response to a FOIA request is measured by a standard of reasonableness. As this court recently noted:
[A]n agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it.
Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.Cir.1979) (footnotes omitted) (emphasis added). This same standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures is equally applicable to test the legality of an agency rule establishing a temporal limit to its search effort. In other words, a temporal limit pertaining to FOIA searches (such as the “time-of-request cut-off” policy that is at issue in this case) is only valid when the limitation is consistent with the agency’s duty to take reasonable steps to ferret out requested documents.
Second, we hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency. The Act explicitly assigns to the agency the burden of persuasion with regard to the closely related issue of the legitimacy of the agency’s invocation of a statutory exemption to justify withholding of material. Two considerations indicate that the same rule should govern the issue before us. One is that the information bearing upon the reasonableness of any temporal or other limitation on a search effort is within the agency’s exclusive control. The other is that the Act as a whole is clearly written so as to favor the disclosure of any documents not covered by one of the enumerated exemptions. Insofar as burdens of persuasion are generally assigned to parties advancing disfavored contentions, the agency should bear the responsibility of convincing the trier of fact that its less than comprehensive search is reasonable under the circumstances
Third, the fact that the subject of this appeal is the grant of appellee’s motion for summary judgment means that the agency must satisfy a significant legal standard in order to carry its burden. The standard has been stated as follows:
It is well settled in Freedom of Information Act cases as in any others that “[s]ummary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.”... [Moreover, the] “ ‘inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion.’ ”
Church of Scientology, 610 F.2d at 836 (footnotes omitted). Thus, for the CIA to have properly prevailed in the case at bar, it must have shown that no material fact relevant to the reasonableness of its use of a time-of-request cut-off date was in dispute and that the evidence established that the procedure employed was reasonable “as a matter of law.” In deciding whether the agency had made such a showing, the District Court was entitled to rely upon affidavits submitted by the agency, describing its search procedures and explaining why a more thorough investigation would have been unduly burdensome. Id. But such affidavits would suffice only if they were relatively detailed, nonconclusory and not impugned by evidence in the record of bad faith on the part of the agency. Id.
B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date
In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA’s decision to limit its search to documents in its possession as of the date of McGehee’s finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny.
The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be “reasonably describe[d].” That provision pertains to the subject matter, location and form of materials sought by a request, not to the times at which responsive documents are acquired. The CIA next directs our attention to two cases holding that an agency has no duty continuously to update its responses to a FOIA request. The doctrine tentatively established by those decisions is inapposite. The question presented in this case is whether, when an agency first releases documents to a requester, it may use as a cut-off date the time of his original demand. That an agency has no obligation, after it has once responded fully to a FOIA request, “to ‘run what might amount to a loose-leaf service’ ” for the benefit of the applicant has little bearing on the issue before us. Finally, the CIA points to case law suggesting that one cannot modify a FOIA request in mid-litigation. Those decisions establish, at most, that a requester is not permitted to alter or refine the subjects to which he originally directed attention; they have nothing to do with the legality of the use of the time of a request as a temporal limit to a FOIA search.
C. The Reasonableness of the Agency’s Procedure in This Instance
Having concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper, we are compelled to turn to the particular facts of the case before us to assess the reasonableness of the agency’s conduct. MeGehee directs our attention to circumstances that, on their face, east considerable doubt on the merits of the agency’s procedure. The CIA took almost two and one-half years to respond to McGehee’s request. Yet, when it finally released documents, the CIA chose to limit itself to records that originated with and were possessed by the agency during the first 35 days following the Jonestown Tragedy. Were these facts all that appeared in the record, we would be very hard pressed to sustain the agency’s actions.
The CIA attempts to dispel the skepticism to which the foregoing circumstances give rise by arguing that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an “administrative nightmare.” To support this claim, the agency points to the benefits of “precispon]” (the value of having a single cut-off date that all agency divisions know in advance), the “confusion” that might be engendered by different agency components using different cutoff dates (e.g., each division using the date at which it commenced searching for documents), the alleged cost and inconvenience to the agency of conducting the successive, duplicative searches that might be necessary if the date of a final response or the date of litigation were employed as a cutoff date, and the disruption of the agency’s fee schedules that would accompany the use of anything other than its present procedure.
In the absence of more detailed substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example:
Sample Procedure Applying a Reasonable “Cut-off” Date to a FOIA Search
Soon after the CIA first receives a request, IPD “tasks” divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the “queue,” IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine whether any material is exempt. Substantive review follows promptly and all nonexempt material is released.
We do not offer the foregoing Sample as a directive to the agency, a procedure with which it is henceforth bound to comply. Nor do we mean to endorse a procedure fraught with excessive time delays. In designing the system, we have taken for granted the fact that the CIA is experiencing inordinate delays in processing FOIA requests; a different procedure might be more suitable for an agency that responds to requests on a relatively current basis. In sum, we set forth the Sample Procedure merely to indicate that one can easily imagine a system that incorporates a cut-off date much later than the time of the original request, that results in a much fuller search and disclosure than the procedure presently used by the agency, that forecloses the necessity for an excessive number of supplementary demands (see note 42 infra), and that does not appear unduly burdensome, expensive, or productive of “administrative chaos.”
It is possible that circumstances unknown to us or to the District Court do indeed render unfeasible any such alternative, more responsive procedure. If so, the agency’s argument that its present practice is “reasonable” would be powerful. We therefore remand this portion of the case with instructions to afford the agency an opportunity to adduce additional relevant testimony. It should be clear, however, that to prevail on this issue, the agency will have to do better than it has thus far.
One additional aspect of this general problem merits brief attention. It would be extremely difficult for the CIA to convince us that it may “reasonably” use any cut-off date without so informing the requester. Such notification would involve an insignificant expenditure of time and effort on the part of the agency. And it would enable the requester to submit supplementary demands for information if he felt so inclined. Unless on remand some extraordinary showing is forthcoming of why the agency should not be required to inform requesters of the dates it is using, the CIA’s unpublicized temporal limitation of its searches should be held invalid.
III. The Referral Procedure
McGehee’s second allegation of error is that the District Court improperly granted the CIA’s motion to dismiss from the lawsuit the records it had obtained from the State Department and FBI. As was true with regard to the issue just discussed, the general principles governing McGehee’s claim are well known but their application to the specific question presented has never been resolved.
A. “Agency Records” Covered by the Act
The Supreme Court has recently clarified the conditions under which a federal court may compel an agency to release documents. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court held:
The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) “improperly”; (2) “withheld”; (3) “agency records.” Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.
Id. at 150, 100 S.Ct. at 968.
The CIA argues vigorously that the District Court’s decision in the instant case was proper under the third branch of this test. Records that are in the possession of the agency to which a FOIA request is submitted but that were originally compiled by another agency, the CIA insists, are not “agency records” within the meaning of the Act. So stated, the argument seems rather implausible, but this was indeed the theory on which the District Court rested its ruling.
Evaluation of this argument proves surprisingly difficult because of the absence of statutory or precedential guidance. As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of “agency records,” never defines that crucial phrase. A reading of the legislative history yields insignificant insight into Congress’ conception of the sorts of materials the Act covers. And we gain little by ransacking the case law interpreting the FOIA; no appellate court has expressed an opinion on the question of the legal status of documents prepared by one agency in the possession of another
This and other courts have, on occasion, been called upon to decide whether other materials of ambiguous form or origin fall within the category of “agency records.” It is upon some of those decisions that the District Court and the CIA principally rely in justifying the position they take in the instant ease. Unfortunately, none of the cases in question is apposite. It has been held that, under certain circumstances, records in an agency’s possession that originated with Congress do not constitute “agency records” for the purpose of the FOIA. Likewise, materials prepared by or for the judiciary that eventually find their way into the hands of an agency eovered by the Act have been held to fall outside the crucial category. The same is true of documents prepared by the President or his personal staff. But two factors distinguish all of these cases from the situation before us. First, each of the departments of government listed above is itself exempt from the coverage of the FOIA. Second, special policy considerations militate against a rule compelling disclosure of records originating in these three bodies merely because such documents happen to come into the possession of an agency. Congress, we have held, should not be forced to abandon either its long-acknowledged right to keep its records secret or its ability to oversee the activities of federal agencies (a supervisory authority it exercises partly through exchanges of documents with those agencies “to facilitate their proper functioning in accordance with Congress’ originating intent”). The courts, similarly, have an important interest in controlling the dissemination of their documents to the public, yet, to facilitate the operation of the penal system, often must make those records available to departments of government covered by the Act. Finally, the importance of the confidentiality of communications between the President and his immediate advisors, combined with the likelihood that records of those exchanges will find their way into portions of the “Executive Office of the President” covered by the Act, render undesirable a per se rule that such documents are “agency records.” In the present case, by contrast, the organs of government that first compiled the records—the State Department and FBI—clearly are covered by the Act. And no policy considerations comparabie to those requiring special protection for documents emanating from Congress, the courts or the President’s personal staff are applicable.
In sum, the question whether a document in the possession of one agency that originated in another constitutes an “agency record” for the purposes of the FOIA is not governed by either the terms of the statute, the legislative history or precedent. To resolve the issue, we are thus compelled to look to the general principles that underlie the Act as a whole.
It has often been observed that the central purpose of the FOIA is to “open[ ] up the workings of government to public scrutiny.” One of the premises of that objective is the belief that “an informed electorate is vital to the proper operation of a democracy.” A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions. Each of these objectives—and particularly the last—would be best promoted by a rule that all records in an agency’s possession, whether created by the agency itself or by other bodies covered by the Act, constitute “agency records.”
This conclusion is buttressed by consideration of the probable practical effect of a different rule. If records obtained from other agencies could not be reached by a FOIA request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access to the materials on the ground that it lacked “custody” of or “control” over the records and had no duty to retrieve them. The agency holding the documents could likewise resist disclosure on the theory that, from its perspective, the documents were not “agency records.” The net effect could be wholly to frustrate the purposes of the Act.
B. Treatment of Documents Obtained From Other Agencies
Our conclusion that the documents the CIA obtained from the State Department and FBI constitute “agency records” does not settle the fate of those materials. Two branches of the test delineated by the Supreme Court remain to be satisfied. The District Court should have compelled disclosure of the documents only if they were “(1) ‘improperly’; (2) ‘withheld’” by the CIA. Kissinger v. Reporters Committee, 445 U.S. at 150, 100 S.Ct. at 968. Unfortunately, the recent vintage of the Court’s three-pronged test means that there is very little case law directly concerned with the meaning of those crucial terms. Nor does the legislative history of the Act provide us much guidance. Once again, therefore, we are cast back upon the premises and objectives of the FOIA as a whole. Those considerations suggest the following definitions:
“ WithholdingCertainly a categorical refusal to release documents that are in the agency’s “custody” or “control” for any reason other than those set forth in the Act’s enumerated exemptions would constitute “withholding.” Interpretive problems arise only in the context of processing or referral procedures that are likely to result eventually, but not immediately, in the release of documents. The legal status of such procedures seems to us best determined on the basis of their consequences. We conclude, in other words, that a system adopted by an agency for dealing with documents of a particular kind constitutes “withholding” of those documents if its net effect is significantly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.
“Improper’’: We are persuaded by Justice Stevens’ opinion in Kissinger that sensible explication of the term “improper” in this context requires incorporation of a standard of reasonableness. Thus, “withholding” of the sort just described will be deemed “improper” unless the agency can offer a reasonable explanation for its procedure. The form such an explanation would be most likely to take would be a showing that the procedure significantly improves the quality of the process whereby the government determines whether all or portions of responsive documents are exempt from disclosure. Naturally, the more serious the resultant impediments to obtaining records or the longer the resultant delay in their release, the more substantial must be the offsetting gains offered by the agency to establish the reasonableness of its system. At the extreme, a procedure that, in practice, imposed very large burdens on requesters (eg., by compelling them to pay huge processing costs or to submit separate requests to a number of independent bodies) or that resulted in very long delays would be highly difficult to justify.
A principle implicit in the foregoing definitions is that, when an agency receives a FOIA request for “agency records” in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere.
There is insufficient evidence in the record to determine what result should be reached by applying these standards to the instant case. Neither the decision below nor the affidavits on which it was based make clear the nature of the referral procedure or exactly what advantages were gained by referring each of the documents obtained from the State Department and FBI to the originating body. Nor is the extent of the accompanying impairment of McGehee’s ability to gain access to those records apparent. We therefore remand the case with instructions to afford the parties opportunity to adduce additional relevant evidence.
We recognize that the standards we adopt today are not “bright line” tests. The District Court may find it difficult, given the absence of other germane precedent, to apply our holdings to the instant case even when all the facts have been ascertained. To mitigate that uncertainty, and to provide some guidance to courts confronted with similar problems in future cases, we set forth below a model for a referral system. We do not suggest that agencies are bound to accept our plan; we describe it merely to indicate one set of practices that would comport with the general principles embodied in the Act:
Sample Procedure for Processing Documents Originating with Other Agencies
An agency in possession of documents, responsive to a FOIA request, that it has received from another agency would forward them to the originating body (in lieu of processing them itself) if and only if they satisfied an “intent to control” test. Specifically, an intention on the part of the originating agency that it retain the authority to decide if and when materials are released to the public would have to be made evident by either (i) explicit indications to that effect on the face of each document or (ii) the circumstances surrounding the creation and transfer of the documents.
To minimize the resultant delay, the referral would have to be prompt and public. In other words, as soon as the agency retrieved responsive documents, and possibly even before it | undertook ah examination of their contents to determine whether they were exempt from disclosure, it would identify those records that originated elsewhere and, if they passed the aforementioned “intent to control” test, would immediately (i) inform the requester of the situation, (ii) notify the originating agency and, (iii) if necessary, forward to the latter copies of the relevant documents. To minimize the burden on the requester, this notification and referral would be accorded the status of a FOIA request; the person seeking information would thereby be relieved of the duty to submit a separate demand to the originating agency.
The system we outline, by promoting (i) the processing by the agencies to which requests are submitted of a substantial percentage of the “other agency” records in their possession and (ii) the rapid referral to the originating bodies of the remainder, would mitigate the two most serious hardships associated with the extant automatic referral systems: the inconvenience to requesters of being compelled to assert their rights in two or more independent administrative fora and the long delays resulting from the superimposition of two or more processing sequences.
If, in a given case, the “intent to control” test were satisfied but the agency to which the request was first submitted had not followed the procedures suggested above by the time litigation commenced, the district court would still have some options at its disposal that would enable it to ensure that the petitioner’s request was processed expeditiously without sacrificing the benefits accruing from a substantive review by the originating agency. The court might, for example, allow the defendant agency to submit affidavits or present witnesses from the originating agency, explaining which documents are exempt and why. Alternatively, the court could require the originating agency to appear as a party to the suit pursuant to Fed.R.Civ.P. 19(a). But these options would be makeshift arrangements; the preferable situation would be adherence to a set of review and referral guidelines of the sort described above.
IV. Invocation of the “Intelligence Source” Exemption
McGehee’s final allegation of error concerns the District Court’s decision to grant summary judgment on the ground that all material withheld by the agency was properly exempt from disclosure under the Act. The CIA defends the ruling below on the ground that it has established that the material in question is covered by FOIA exemptions (1) and (3). In the context of the instant case, the agency observes, those two provisions are functionally equivalent: both shield all information whose disclosure would result in revelation of the identities of “intelligence sources.”
The crucial issue, as this matter appears before us, is whether the District Court was warranted in granting the CIA’s motion for summary judgment solely on the basis of affidavits submitted by the agency. Here at last we have the benefit of a well-established body of precedent. A long line of cases, decided in this circuit and elsewhere, have prescribed the standards for reviewing claims of exemptions in this procedural context:
[Sjummary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (footnote omitted).
The CIA in the instant case satisfies the first and second branches of this composite test. The affidavits submitted by Louis J. Dube describe in considerable detail the grounds for the exemptions claimed by the agency and the reasons why each relevant document falls into one of the categories delineated. The agency likewise passes the third component of the test; no representation made in the Dube affidavits is controverted by other evidence in the record.
On the fourth and final requirement, however, the CIA stumbles. We find that the record contains significant evidence suggesting that the agency has not processed McGehee’s request in good faith. Our conclusion is founded principally on the combination of two facts: First, it took almost two and one-half years before the CIA processed McGehee’s reasonably straightforward request; indeed, the agency made no substantive response whatsoever until compelled to do so by order of the District Court. Second, the CIA failed to disclose the fact that it was using December 22, 1978, as a cut-off date. The cumulative weight of this evidence of bad faith is enough to vitiate the credit to which agency affidavits are ordinarily entitled. Accordingly, the District Court’s grant of summary judgment was erroneous.
It remains to be decided what should be the proper remedy on remand. McGehee urges two solutions on us. First, he requests an instruction to the District Court to permit him to conduct discovery to ascertain the basis of the agency’s claim that disclosure of the withheld material would reveal the identities of “intelligence sources.” Second, he seeks a directive to the District Court to conduct an in camera examination of the documents in question to determine whether the invocations of exemptions were justified.
With regard to the first option, the CIA argues vigorously that an explanation for its actions any fuller than that already made would itself compromise national security. Such a claim should not be disregarded lightly. Although evidence of agency bad faith, as we have shown, undermines the credibility of many of the CIA’s allegations, we are unwilling to respond by exposing the agency to McGehee’s discovery, at least if there exists any alternative method of testing the agency’s right to rely upon the statutory exemptions.
We turn, therefore, to the second proposed remedy. In a recent case, we summarized the considerations that should guide a district court in deciding whether to conduct an in camera inspection of withheld records. In Allen v. CIA
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_appel1_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 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.
GOVERNMENT SUPPLIERS CONSOLIDATING SERVICES, INCORPORATED and Jack Castenova, Incorporated, Plaintiffs-Appellants, Cross-Appellees, v. Honorable Evan BAYH, Governor of the State of Indiana, and Honorable Kathy Prosser, Commissioner of the Indiana Department of Environmental Management, Defendants-Appellees, Cross-Apellants.
Nos. 92-1318, 92-1515.
United States Court of Appeals, Seventh Circuit.
Argued April 27, 1992.
Decided Sept. 17, 1992.
Ronald J. Waicukauski, White & Raub, Indianapolis, Ind., Bruce L. Thall (argued), Abramson Freedman & Thall, Philadelphia, Pa., for plaintiffs-appellants.
Robert S. Spear, Chief Counsel, Office of Atty. Gen., Federal Litigation, Arend J. Abel, John R. Maley, Barnes & Thornburg, David F. Hamilton (argued), Rosemary G. Spalding, Indiana Dept, of Environmental Management, Indianapolis, Ind., for defendants-appellees.
Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
The plaintiffs, who are brokers of municipal solid waste, arrange for trucks to haul waste from temporary storage sites in New York, New Jersey, and Pennsylvania to landfills in Indiana. Seeking a declaratory judgment and injunctive relief, they brought suit in the United States District Court for the Southern District of Indiana to challenge the constitutionality, under the Commerce Clause, of Indiana statutes regulating the trucking of municipal waste. The district court upheld all but one of the provisions at issue, and the plaintiffs appeal. The defendants cross-appeal, challenging both the district court’s determination that the plaintiffs had presented a controversy ripe for review and its determination as to the one provision struck down. For the reasons set forth in this opinion, we reverse in part and affirm in part.
I
BACKGROUND
A. The Challenged Provisions
The plaintiffs challenge a set of statutory provisions regulating the transport and disposal of municipal waste in Indiana. According to the plaintiffs, the challenged provisions, which were enacted as a package in 1991, are aimed at reducing or eliminating, and will in fact reduce or eliminate, the disposal of out-of-state waste in Indiana.
1. The backhaul ban
Under Indiana Code § 13-7-31-13.1, trucks that are used to haul municipal waste to Indiana landfills or disposal facilities may be used to haul only a limited number of other items. The statute provides that “municipal waste collection and transportation vehicles” may only be used to collect and transport the following:
(1)Municipal waste.
(2) Special waste (as defined in 329 IC 2-2-1 as in effect January 1, 1990).
(3) Hazardous waste regulated under:
(A) IC 13-7-8.5; or
(B) the federal Solid Waste Disposal Act (42 U.S.C. 6901 et seq. as in effect January 1, 1990).
(4) Waste described under IC 13-1-12-9'that results from the combustion of coal.
(5) Material that is being transported to a facility, except an incinerator or a landfill, for reprocessing or reuse.
(6) Wood, concrete, brick, and other construction and demolition materials.
(7) Dirt, sand, gravel, asphalt, salt, and other highway maintenance material.
(8) Coal, gypsum, slag, scrap metal, and other bulk industrial commodities.
(9) Infectious waste (as defined under IC 16-1-9.7-3).
Ind.Code § 13-7-31-13.1. The practical impact of this law is to require the use of semi-dedicated fleets of trucks to haul garbage to Indiana. As the district court stated, if this provision is enforced, “a significant number of the remaining truckers now willing to haul trash to Indiana will become unwilling because they cannot afford to dedicate their trucks to so limited a range of payloads.” No. 91 C 899, Order at 16 (R. 132) (Feb. 5, 1992).
2. Vehicle registration and stickering
Indiana enforces its backhaul ban by requiring that municipal waste collection and transportation vehicles be registered with the Indiana Department of Environmental Management, Ind.Code § 13-7-31-8, and bear identification stickers. Ind. Code § 13-7-31-8.2(d). The Department must issue the registration and identification stickers within thirty days after receipt of the application. Ind.Code § 13-7-31-8(d). The registration must be renewed every two years, Ind.Code § 13-7-31-8.1(a), and the fee for registration or renewal is $100. Ind.Code § 13-7-31-16.-1(a)(1). A person who owns, leases, or operates more than one municipal waste collection and transportation vehicle need obtain only one registration listing all such vehicles. Ind.Code § 13-7-31-8.2(a). A copy of the current registration must be carried by each vehicle at all times. Ind. Code § 13-7-31-8.2(c). All vehicles must bear stickers:
Vehicle identification stickers provided by the department, indicating that the vehicle carries municipal waste, must be affixed adhesively at all times in a prominent location on each side of each registered municipal waste collection and transportation vehicle’s cargo compartment or, at the option of the person to whom the registration is issued, on each side of a truck cab of a vehicle.
Ind.Code § 13-7-31-8.2(d)..Landfills are not permitted to accept a shipment of municipal waste if the vehicle carrying it does not have a vehicle identification sticker properly affixed. Ind.Code § 13 — 7—31— 14(1).
3. Surety bond and disposal fees
Indiana law also provides that “nonresident operators,” that is, brokers like the appellants, managers of transfer stations, or transporters of municipal waste, who are not residents of Indiana, must post a surety bond with the Indiana Department of Environmental Management. Ind.Code § 13-7-10.5-15. This provision is intended to “ensure the collection and payment of any civil penalties that the operator may be required to pay in Indiana because of the solid waste transfer activities of the operator.” Ind.Code § 13-7-10.5-15(l)(B). The amount of the surety bond and the time for payment are to be determined under rules adopted by the Solid Waste Management Board. Ind.Code § 13-7-10.5-15(l)(A). Such rules have not yet been adopted. In addition, the nonresident operator is “considered to appoint the Secretary of State as the operator’s agent for purposes of service of process in connection with any matter involving solid waste transfer activities.” Ind.Code § 13-7-10.5-15(2).
Lastly, the appellants challenge Indiana’s disposal fees. Indiana Code § 13-9.5-5-1 provides not only for fees that apply uniformly to all waste, regardless of origin, but also for fees that apply only to waste generated outside Indiana. These latter fees are to be determined by rules to be adopted by the Solid Waste Management Board, and “shall be set at an amount necessary to offset the costs incurred by the state or a county, municipality, or township that can be attributed to the importation of the solid waste into Indiana and the presence of the solid waste in Indiana.” Ind.Code § 13-9.5-5-l(b). Rules have not yet been adopted.
B. Facts
We give the facts as found'by the district court. Indiana is an economically favorable disposal site for municipal waste from other regions of the United States. Indiana’s first attempt to regulate the hauling of waste into Indiana was declared unconstitutional under the Commerce Clause in 1990. See Government Suppliers Consolidating Serv., Inc. v. Bayh, 753 F.Supp. 739 (S.D.Ind.1990). After this ruling, which was not appealed, Indiana enacted new provisions regulating the disposal of municipal waste. Those provisions are the ones at issue in the present case. The primary target of the provisions is a practice known as backhauling or crosshauling.
Truckers who haul municipal waste from the eastern United States to the Midwest normally are engaging in backhauling or crosshauling. The truckers haul goods from the Midwest to New York, New Jersey, or Pennsylvania; these trips (known as fronthauls) are a trucker’s main source of income. Instead of returning to the Midwest with empty trucks, they haul back trash for disposal in midwestern landfills. Trash collected in eastern cities is stored temporarily in transfer and recycling stations. At these stations, the waste is compacted and bound into large bundles. Brokers (like the appellants) identify truckers looking for backhauls of trash and arrange a pick-up for them from a transfer station and also arrange for disposal of the trash in a landfill in Indiana (or another midwest-ern state). Flatbed trailers, box-type semi trailers, and open-top dump trailers are used to carry the trash to Indiana. An individual trucker may haul waste to Indiana only once in several years or may haul waste regularly. The brokers do not have long-term contracts with truckers; arrangements for transport of each load of waste are made on an ad hoc, one-time basis.
Many customers of trucking companies refuse to load their goods onto any vehicle that has hauled municipal waste. As the appellants candidly conceded before the district court, trucking companies would prefer that their other customers remain unaware that their trailers have hauled municipal waste. Order at 32. Evidence at trial showed that even commercial entities that are not involved in food products do not want their products transported in trucks that previously hauled trash. These shippers were concerned about potential adverse effects on product reputation. Order at 27. Shippers, apparently thinking that if a truck is very clean it must have been recently washed after hauling garbage, have rejected trucks because they are too clean. As the district court noted, “this illustrates that shippers are more concerned with reputation' than with the actual health risks.” Order at 27 n. 10. One trucker testified in the district court that he would not voluntarily tell a shipper that a trailer had previously hauled trash because of the stigma attached to crosshaul-ing. Order at 32. However, in spite of pressure from shippers not to haul waste, “it is also clear that many truckers, especially small operators, are still willing to crosshaul trash. If the questioned provisions are enforced, then a significant number of the remaining truckers now willing to haul trash to Indiana will become unwilling because they cannot afford to dedicate their trucks to so limited a range of payloads.” Order at 16.
The district court found that, unlike out-of-state waste, “Indiana-generated municipal waste generally is not cross-hauled— that is, trash is usually shipped intrastate in traditional, dedicated garbage trucks, not dry vans.” Order at 25.
Today a broker must pay a trucker approximately $35 a ton for hauling municipal waste from New York to Indiana. If a dedicated fleet of garbage trucks is used, the cost will double to about $70 a ton. Including a typical Indiana tipping fee of $15 per ton (the disposal fee that must be paid to the landfill), the total disposal cost of crosshauled trash is approximately $50 a ton. If a dedicated fleet is used, the total cost for disposing of New York waste in Indiana will be $85 a ton. At $85 a ton, Indiana will no longer be the most economically reasonable state for the disposal of trash. According to the testimony of the brokers, transfer stations will not pay $85 a ton to dispose of waste; thus the back-hauling ban, if enforced, will eliminate interstate transport of waste to Indiana. Order at 28.
C. District Court Proceedings
The district court first determined that the plaintiffs’ challenges to all of the provisions described above were properly before it. It then examined the constitutionality of the prohibition on backhauling and the registration/stickering provisions as applied. The district court determined that the backhaul ban was facially neutral and applied identically to similarly situated waste haulers, regardless of their residence and the origin of the waste they carried. Therefore, it evaluated its constitutionality under the standard enunciated in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), noting that, under this standard, “a statute will not be held unconstitutional unless the burden imposed on commerce is clearly excessive in relation to the local benefits.” Determining that the putative local benefits (protection of health and of the reputation of Indiana products) justified the burden on interstate commerce (lower profits for waste haulers), the court upheld the statute.
The district court also upheld the registration and stickering provisions. Noting that the statute does not distinguish on its face between local trash haulers and national waste disposal companies, the district court also found that it did not discriminate in practical effect. Moreover, the court noted, “there is no evidence that an Indiana entity will benefit economically from the registration/stickering provision so it does not constitute economic protectionism.” Order at 31. According to the district court, the primary local benefit of the statute was to assist Indiana in enforcing its backhauling prohibitions. Also, registration and stickering would promote private enforcement of the backhauling ban: “All sides agree that if shippers see the stickers, they will probably not use the truck. Thus, crosshauling will be effectively eliminated by private enforcement.” Order at 31. The court rejected the plaintiffs’ arguments that “sticker stigma” was a burden on interstate commerce; rather, it noted, “the dormant Commerce Clause does not give trucking companies a constitutional right to conceal information from their customers.” Order at 32. In addition, the district court stated that, while “there [was] no doubt that enforcement of the vehicle registration greatly w[ould] change how the plaintiffs do business,” Order at 33, the Commerce Clause does not protect a particular method of doing business. Lastly, the court rejected the plaintiffs’ assertions that the registration and stickering requirements were duplicative and ineffective.
The district court reviewed the remaining two provisions at issue here, the disposal fee and surety bond, for facial validity. It upheld the disposal fee provision; however, it struck down the surety bond provision as an unnecessary burden on interstate commerce, noting that other provisions of the Indiana Code require out-of-state operators to register with the Indiana Department of Environmental Management, and that the registration process “should provide the state with all information it requires to adequately effectuate its judgments.” Order at 40.
D. Contentions of the Parties
Government Suppliers and Castenova submit that the district court erred in upholding the backhaul ban, the registration and stickering provisions, and the disposal fees to be imposed on out-of-state waste. They contend that the court should have examined the backhaul ban and the registration and stickering provisions under what they denominate the “per se” test, that is, the elevated scrutiny applied by the Supreme Court where the statute in question is discriminatory on its face or in practical effect. See, e.g., Brown-Forman Distillers v. New York State Liquor Auth., 476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986); Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979).
In a cross-appeal, Indiana submits that the plaintiffs’ challenge to the backhauling ban should be dismissed for lack of a case or controversy and that the plaintiffs’ challenges to the surety bond and the disposal fee are not ripe for judicial resolution, because as yet no implementing rules have been adopted. They also appeal the district court’s determination that the provision requiring out-of-state operators to post a surety bond is invalid under the Commerce Clause.
II
JURISDICTION
“The appropriate test to determine if there is an actual controversy, one ripe for decision, under the Declaratory Judgment Act is the one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270 [61 S.Ct. 510, 85 L.Ed. 826] (1941).” Oneida Tribe of Indians v. State of Wisconsin, 951 F.2d 757, 760 (7th Cir.1991) (citing Lake Carriers’ Ass'n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972)). “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.” Maryland Casualty, 312 U.S. at 273, 61 S.Ct. at 512. Indiana submits that the district court erred in finding that it had subject matter jurisdiction over the claims asserted by Government Suppliers and Castenova. It argues that, in challenging the backhaul ban, the plaintiffs have presented “no concrete, justiciable controversy.” Appellees’ Br. at 41. We find little merit in Indiana’s arguments on this point. Jurisdiction is clearly proper as to the backhaul ban and the registration and stickering provisions that accompany it. The plaintiffs do not themselves engage in backhauling; their business consists in arranging for others to do so. It is undisputed that their business would suffer severe adverse effects from enforcement of the backhaul ban. Such economic injury, though indirect, is sufficient to confer standing. Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The interest they seek to vindicate is within the zone of interests protected by the Commerce Clause. See Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320-21 n. 3, 97 S.Ct. 599, 602-03 n. 3, 50 L.Ed.2d 514 (1977); Bacchus Imports Ltd. v. Dias, 468 U.S. 268, 267, 104 S.Ct. 3049, 3055, 82 L.Ed.2d 200 (1984).
Indiana’s contention that the plaintiffs presented only an abstract, and therefore unripe, question appears to rest on the assertion that the plaintiffs did not specify what sorts of goods they claim the “Constitution mandates be allowed to travel in municipal waste vehicles, and under what circumstances.” Appellees’ Br. at 43. “In sum, Plaintiffs have asked the Court for a broad advisory opinion that they (or more precisely, the trucking companies with whom they do business) can haul in trash trucks a broad range of goods, the specifics of which the Court can only guess.” Id. However, as will become clear in our discussion, the legal issue presented “is one the resolution of which would be essentially unaffected by further factual development.” Peick v. Pension Benefit Guar. Corp., 724 F.2d 1247, 1261 (7th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 855 (1984). The case presents “a substantial controversy between parties having adverse interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Lake Carriers’ Ass’n v. MacMullan, 406 U.S. at 506, 92 S.Ct. at 1755.
The ripeness for facial review of the surety bond provision and the disposal fees is a closer question. The implementing regulations have not yet been written or adopted. However, as the Supreme Court stated in Pacific Gas & Electric Co. v. State Energy Resource Conservation & Development Commission, 461 U.S. 190, 201, 103 S.Ct. 1713, 1721, 75 L.Ed.2d 752 (1983), “[o]ne does not have to await the consummation of threatened injury to obtain preventative relief.” In order to protect against a feared future event, “the plaintiff must demonstrate that the probability of that future event occurring is real and substantial, ‘of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Salvation Army v. Department of Community Affairs, 919 F.2d 183, 192 (3d Cir.1990) (quoting Steffel v. Thompson, 415 U.S. 452, 460, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974)). When “present harms will flow from the threat of future actions,” Armstrong World Industries, Inc. v. Adams, 961 F.2d 405, 412 (3d Cir.1992), those present harms may mean a controversy is ripe for review. See Volvo N. Am. Corp. v. Men’s Int’l Professional Tennis Council, 857 F.2d 55, 63-64 (2d Cir.1988) (“the prospect or fear of future events may have a real impact on present affairs, such that a preemptive challenge is ripe”).
The district court found, based on defendants’ own affidavits, that Indiana intends to enforce the surety bond provision and disposal fee provision once enabling rules are promulgated, and that enforcement would affect the plaintiffs’ businesses. And, according to the plaintiffs, these statutes, though not yet enforced, have an immediate damaging effect on their businesses. As Judge Tinder recognized in the earlier case between the parties, “advance planning required for the interstate shipment of solid waste could well be impaired by the fear of increased future costs.” Government Suppliers Consol. Serv., Inc. v. Bayh, 734 F.Supp. 853, 861 (S.D.Ind.1990). Moreover, faced with future enforcement of provisions which, as the district court recognized, might eliminate disposal of out-of-state waste in Indiana, the appellants “are now incurring increased costs and diminution of revenues and profits based upon the need to secure and use disposal sites outside of the State of Indiana.” Appellants’ Combined Reply Br./Answering Br. at 12. In some cases, the absence of implementing regulations may render the actual effect of the statute too uncertain to make review possible. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986) (“A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.”); Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 438, 97 S.Ct. 2777, 2788, 53 L.Ed.2d 867 (1977) (“For [the Court] to review regulations not yet promulgated, the final form of which has been only hinted at, would be wholly novel.”). In the present case, however, what the statutes authorize is clear; only procedures and amounts are uncertain. There is no need to wait for regulations or specific applications to evaluate and make a conclusive determination as to the legal issue presented. See Pacific Gas & Elec. Co., 461 U.S. at 201, 103 S.Ct. at 1720; Armstrong World Indus., 961 F.2d at 412. The provisions are ripe for review.
Ill
ANALYSIS
The Commerce Clause not only gives the Congress the power to regulate, through the use of its legislative power, commerce among the states, but also limits the power of the states, even in the absence of federal legislation, to burden interstate commerce. See Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996 (1851). In City of Philadelphia v. New Jersey, 437 U.S. 617, 623-24, 98 S.Ct. 2531, 2535-36, 57 L.Ed.2d 475 (1978), Justice Stewart, writing for the Court summarized this latter aspect of the Commerce Power and the need for “delicate adjustment of the conflicting state and federal claims”:
Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention “because of their local character and their number and diversity.” South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 185 [58 S.Ct. 510, 514, 82 L.Ed. 734]. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440 [98 S.Ct. 787, 793, 54 L.Ed.2d 664], The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-538 [69 S.Ct. 657, 664-665, 93 L.Ed. 865]:
“This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U.S. [511], 527 [55 S.Ct. 497, 502, 79 L.Ed. 1032], ‘what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.’ ”
The opinions of the Court through the years have reflected an alertness to the evils of “economic isolation” and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.
The jurisprudence of this “dormant” or “negative” Commerce Power described by Justice Stewart is the product of the inevitable tension between the need to preserve the capacity of the country to address national economic concerns and the need of state government to exercise its residual police powers for the betterment and protection of its citizens. It should not be surprising, therefore, that litigation in this area often centers on areas of acute economic and social concern where the interests of preserving the national capacity to act and of allowing state government to solve local problems is particularly urgent. Consequently, in these last decades of the twentieth century, environmental problems have produced heightened concerns about waste management, and garbage has become a frequent focal point of dormant commerce power jurisprudence.
Garbage is, under the prevailing ease law of the Supreme Court, indisputably an article of commerce, and “ ‘States are not free from constitutional scrutiny when they restrict’ ” its interstate movement. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, — U.S. -,-n. 3, 112 S.Ct. 2019, 2023 n. 3, 119 L.Ed.2d 139 (1992) (quoting Philadelphia v. New Jersey, 437 U.S. at 622-23, 98 S.Ct. at 2534-35). States faced with increased and rising waste volumes and foreseeable shortages of landfill space have attempted by various statutory means to slow down or halt the inflow of waste from other states where disposal costs are higher. In Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, the Supreme Court struck down a New Jersey law that, with a few minor exceptions, prohibited the importation of “solid or liquid waste which originated or was collected outside the territorial limits of the state.” More recently, in Fort Gratiot, — U.S.-, 112 S.Ct. 2019, and Chemical Waste Management, Inc. v. Hunt, — U.S. -, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992), the Court struck down Michigan and Alabama laws that discriminated against interstate commerce in trash. In these cases, the Court reaffirmed the basic principle behind Philadelphia v. New Jersey: one state may not “isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.” Philadelphia v. New Jersey, 437 U.S. at 628, 98 S.Ct. at 2538; see Chemical Waste, — U.S. at -, 112 S.Ct. at 2012; Fort Gratiot, — U.S. at -, 112 S.Ct. at 2024.
A. The Backhaul Ban, Registration, and Stickering
The heart of the Indiana regulatory scheme under review is the so-called back-haul ban and its attendant registration and stickering provisions. Our evaluation of these provisions requires that we set forth in more detail the principles developed by the Supreme Court to guide dormant Commerce Clause analysis. As the Court explicitly noted in Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 579, 106 S.Ct. 2080, 2084, 90 L.Ed.2d 552 (1986), there are two alternate analytical perspectives for problems under the dormant Commerce Clause. The “critical consideration” in determining the appropriate analysis “is the overall effect of the statute on both local and interstate activity.” Brown-Forman Distillers, 476 U.S. at 579, 106 S.Ct. at 2084.
Under the first test, a statute “which clearly discriminates against interstate commerce is unconstitutional ‘unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.’ ” Fort Gratiot, — U.S. at- -, 112 S.Ct. at 2023-24 (quoting New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 274, 108 S.Ct. 1803, 1808, 100 L.Ed.2d 302 (1988)). By contrast, under the second test (the Pike test), if a statute is neutral on its face, has only indirect or incidental effects on interstate commerce, and regulates evenhandedly, the statute will be upheld “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Under the Pike test, if a legitimate local purpose is “credibly advanced,” Chemical Waste, — U.S. at-n. 5, 112 S.Ct. at 2014 n. 5 (quoting Philadelphia v. New Jersey, 437 U.S. at 624, 98 S.Ct. at 2535), “then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike, 397 U.S. at 142, 90 S.Ct. at 847.
The district court applied the lesser level of scrutiny enunciated in Pike. It reasoned that the statutes under review were “facially neutral,” that they “treat[ ] similarly situated waste haulers alike, regardless of their residence or the origin of the wastes they carry. Neither intrastate nor interstate waste haulers may crosshaul municipal waste and any non-exempt item.” Order at 25. The district court rejected the plaintiffs’ argument that the backhaul ban was discriminatory because it affected primarily interstate haulers of waste (Indiana-generated waste generally is not crosshauled, but usually shipped intrastate in traditional, dedicated garbage trucks). In the district court’s view, the plaintiffs’ argument boiled down to an assertion that the statute would apply most often to out-of-state entities, and that circumstance alone did not render the statute discriminatory. Order at 25 (citing CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 88, 107 S.Ct. 1637, 1649, 95 L.Ed.2d 67 (1987); see Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th Cir.), cert. denied, 493 U.S. 955, 110 S.Ct. 367, 107 L.Ed.2d 353 (1989)).
However, a determination that a statute does not discriminate on its face and “purports to regulate evenhandedly” does not end the question of which scrutiny should apply. See Brimmer v. Rebman, 138 U.S. 78, 11 S.Ct. 213, 34 L.Ed. 862 (1891). When a statute discriminates “in practical effect” against interstate commerce, the fact that it purports to apply equally to citizens of all states does not save it. In Brimmer, the Court struck down a Virginia statute requiring that fresh meat brought from more than 100 miles away from the place of sale had to be inspected and imposing a significant inspection fee on the seller of the meat. Recently, in Fort Gratiot, the Supreme Court set forth approvingly the Brimmer Court’s analysis:
This statute [cannot] be brought into harmony with the Constitution by the circumstance that it purports to apply alike to the citizens of all the States, including Virginia; for ‘a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States, including the people of the State enacting such statute.’ Minnesota v. Barber, [136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (1890)]; Robbins v. Shelby Taxing District, 120 U.S. 489, 497 [7 S.Ct. 592, 596, 30 L.Ed. 694]. If the object of Virginia had been to obstruct the bringing into that State, for use as human food, of all beef, veal and mutton, however wholesome, from animals slaughtered in distant States, that object will be accomplished if the statute before us be enforced.
Brimmer v. Rebman, 138 U.S. 78, [83], 11 S.Ct. 213, 214, 34 L.Ed. 862 (1891) (as quoted by Fort Gratiot, — U.S. at -, 112 S.Ct. at 2025) (emphasis added); see also Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951).
In the case before us, Indiana has not “artlessly disclosed an avowed purpose to discriminate,” Dean Milk, 340 U.S. at 354, 71 S.Ct. at 298, and therefore, to determine what level of scrutiny to apply, we must examine the practical effect of the statutes in question on interstate commerce. Indiana argues that the district court was correct in applying the Pike test — that the backhaul ban and its accompanying registration and stickering provisions are facially non-discriminatory, regulate evenhandedly, and have only incidental effects on interstate commerce.
As the Supreme Court has noted, the “critical consideration is the overall effect of the statute on both local and interstate activity,” Brown-Forman, 476 U.S. at 573, 106 S.Ct. at 2081 (emphasis added), and whether the “effect is to favor in-state economic interests over out-of-state economic interests.” Id. Furthermore, “when considering the purpose of a challenged statute, [the] Court is not bound by ‘[t]he name, description or characterization given it by the legislature or the courts of the State,’ but will determine
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_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.
DECOSS v. TURNER & BLANCHARD, Inc.
(Circuit Court of Appeals, Second Circuit.
November 15, 1926.)
No. 66.
1. Trial <§=>382 — -Trial judge, as trier of facts, must make firm decision on issues of fact, and cannot escape responsibility by statement that his mind is confused.
Trial judge, as trier of facts, must render firm decision on issues of fact raised by conflicting testimony, and cannot escape responsibility by mere statement that his mind is confused or unsettled.
2. Witnesses <@=>340(2) — Moral qualities must be considered in determining credibility of witnesses, and one witness having proper attributes outweighs any number not possessing such attributes.
Moral qualities must be considered in determining credibility of witnesses, and one witness having proper attributes of ability and credibility outweighs any number of witnesses not possessing such attributes.
3. Admiralty <®= i 17.
Appeal in admiralty is trial de novo, and appellate court may examine facts.
4. Master and servant'<@=>279(4).
Evidence held to show that injury sustained by stevedore while unloading ship was caused by negligence of fellow servant, precluding recovery.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel filed by Peter Deeoss against Turner & Blanchard, Inc., to recover damages for personal injuries sustained while in its service. Decree for respondent; libelant appeals.
Affirmed.
Milton A. Fischer, of New York City, for appellant.
E. C. Sherwood, of New York City (William L. O’Brion, of New York City, of counsel), for appellee.
Before HOUGH, MANTON, and MACK, Circuit Judges.
MANTON, Circuit Judge.
The appellant was employed by the appellee on a steamship at Pier 6, f'oot of Forty-Second street, Brooklyn. He was a member of a gang of stevedores who were unloading boxes and barrels through one of the hatchways to the dock. A net sling was used in lifting the barrels, and it was the duty of the appellant, with others, to take the barrels from their place of stowage in the hold of the vessel and prepare them for hoisting. .The claim upon which negligence is predicated is that pieces of wood —parts of broken boxes — had accumulated together with pieces of dunnage, and were on the floor of the hold in the clear space; that while tipping a barrel, which was being prepared for hoisting, the edge of the barrel struck a piece of wood, which flew up, striking him in the eye., and causing the loss of an eye. The barrels in question weighed about 700 pounds and were 3 feet high. Three men were engaged in moving each barrel. The appellant was using a hook, endeavr ofing to tip the barrel, when he says this accident occurred. In support of this claim, he called four men of his gang. The appellee produced one disinterested witness, who testified that one of the men engaged in moving the barrel was using a hand hook, and that it slipped, striking the appellant in the eye, causing the injury. The District Judge rendered an opinion, stating:
. “The trial resolved itself into a question of veracity. "* * “ There is no middle ground. Either one side or the other was telling the truth. In other words, the testimony is evenly balanced as to this determining point. * * * Either the watchman was telling the truth, or these companions of libelant’s were. The watchman’s story was neither improbable nor unlikely, nor can I see that anything in the way of motive existed. Nor was the story of the stevedores necessarily improbable or unlikely, although, if the watchman’s story is true, considerable motive may have existed in the mind of at least the companion of libelant, who unfortunately then had caused the injury.
“However, bearing in mind the burden resting on libelant, to prove by a fair preponderance of evidence, how the accident happened, the cause, as well as the effect, I am unable on this record to determine the cause. One story is as likely as the other. One witness’ statement is absolutely contradictory of the other. There is nothing in the record by which I can measure the respective credibility of the witnesses. I am therefore unable to determine by a fair preponderance of evidence what caused the accident.”
Thereupon, he said, “It is necessary for me to dismiss the complaint.”
The learned District Judge was called upon to decide where the truth was in this controversy. He had the advantage of seeing the witnesses and hearing them testify and through the process of cross-examination learning their interest and thus he had full opportunity of reaching a determination on the issue of fact presented. Such is the daily task of a trial judge where issues of fact axe presented. It will not do to escape the responsibility by a mere statement that the mind of the trier of facts is confused or unsettled as to the controversy. Either the libelant made out his claim or failed to do so, and a firm decision on this issue of facts should have been rendered. It was not a difficult task.
Within a courtroom, as without, many elements enter into the test of credibility of a witness. They have often been repeated in the cases. No measure need ordinarily be made because of quantity. It is the moral qualities which constitute credibility. One witness, having the proper attributes of ability and credibility, who exemplifies such as he testifies, outweighs any indefinite number of witnesses, who do not possess the same attributes, or might possess other attributes. When evidence is weighed to determine what is the fact proven thereby, the qualities going to make up the integrity of the witness are never bolstered up by numbers. The number of witnesses are ordinarily not to be counted by a jury or trial judge, in order to determine upon which side there is a preponderance. The evidence given by them is to be weighed by the familiar tests by which men determine the truthfulness of statements of other men in everyday life.
This being an appeal in admiralty, and therefore a trial de novo, we may and do examine the facts. Mr. Brasier, called by the appellee, was employed by the steamship line. He was a disinterested witness, and his testimony, when read, is most convincing. He showed no bias or motive to deceive. It was his duty to watch the men and guard against theft. His testimony is clear that the appellant’s injury was caused by a hook slipping and striking him in the eye. Without bias or motive, with a frankness to be commended, there was nothing to indicate why he should wrong an unfortunate workman who has sustained such an injury. On the other hand, the testimony given by the appellant’s fellow workmen contains many doubts and inconsistencies. It should not be accepted as establishing the claim that a piece of wood caused the injury.
The decree is affirmed, with costs.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MERCEDES-BENZ OF NORTH AMERICA, INC., Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent, General Motors Corporation, Intervenor.
No. 89-1762.
United States Court of Appeals, District of Columbia Circuit.
Argued May 21, 1991.
Decided July 12, 1991.
David A. Vaughan, with whom Elliot B. Staffin was on the brief, Washington, D.C., for petitioner.
Kenneth N. Weinstein, Asst. Chief Counsel, Nat. Highway Traffic Safety Admin., with whom Stuart M. Gerson, Asst. Atty. Gen., Paul Jackson Rice, Chief Counsel and Enid Rubenstein, Atty., Nat. Highway Traffic Safety Admin, were on the brief, Washington, D.C., for respondent. Stephen Wood, Atty., Nat. Highway Traffic Safety Admin., Washington, D.C., also entered an appearance for respondent.
John Gibson Mullan, Washington, D.C., with whom Dennis R. Minano and Thomas L. Arnett were on the brief, Detroit, Mich., for intervenor.
Before MIKVA, Chief Judge, and WILLIAMS and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILLIAMS.
STEPHEN F. WILLIAMS, Circuit Judge:
In 1975 Congress designed a system to reduce American energy consumption through corporate average fuel economy (“CAFE”) standards for cars. See Title III of the Energy Policy and Conservation Act, Pub.L. No. 94-163, 89 Stat. 901 (1975), adding § 502 et seq. to the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 2002 et seq. (1988) (“the Act”). The National Highway Traffic Safety Administration (“NHTSA”), which administers the CAFE program, assessed a civil penalty against Mercedes-Benz for failing to meet the standard for model year (“MY”) 1985. Mercedes-Benz asks us to reverse the penalty and to require NHTSA on remand to entertain its claim that the standard should be set lower.
The only standard genuinely at issue here was set by Congress itself, against which Mercedes-Benz makes no constitutional claim. Mercedes-Benz’s only attack is on NHTSA, and the only conduct for which NHTSA is even theoretically vulnerable is its failure to amend the congressional standard. As Mercedes-Benz petitioned for an amendment of the 1985 standard only in August 1987 and the NHTSA Administrator lawfully rejected the petition on the ground that retroactive amendment would be inconsistent with the statutory scheme, see Passenger Automobile Average Fuel Economy Standards; Denial of Petitions for Rulemaking, 53 Fed.Reg. 15241, 15243/3 (1988); GMC v. NHTSA, 898 F.2d 165 (D.C.Cir.1990), there is no error in NHTSA’s rejection of Mercedes-Benz’s attack on the standard.
For certain model years, including 1985, Congress set the CAFE standard itself (27.5 miles per gallon); for model years 1981 through 1984, it authorized NHTSA to set standards no later than July 1, 1977. § 502(a)(3), 15 U.S.C. § 2002(a)(3). As to both groups of standards, Congress provided that NHTSA “may, by rule, amend” the previously established standard. § 502(a)(4), 15 U.S.C. § 2002(a)(4) (MY 1985 and later years); § 502(f)(1), 15 U.S.C. § 2002(f)(1) (MYs 1981-84; between “by rule” and “amend”, this latter section inserts “from time to time”). One may obtain judicial review of a rule establishing a CAFE standard by filing a petition in this court within 60 days of promulgation. § 504(a), 15 U.S.C. § 2004(a).
Petitioner Mercedes-Benz’s average fuel economy rating for 1985 was 23.6 mpg, nearly four miles per gallon below the congressional standard. At the conclusion of an enforcement proceeding initiated by NHTSA, see 15 U.S.C. §§ 2007(a)(1), 2008(b) (1988), Mercedes was assessed a civil penalty of $5,509,400, which it appeals. Mercedes does not quarrel with NHTSA’s math; the methodology for calculating fines is quite straightforward. Instead it urges that NHTSA wrongfully refused to entertain its substantive attack on the underlying CAFE standard in the enforcement proceeding.
The parties devote considerable energy to the general question of when a party who is subjected to enforcement proceedings for violating an agency rule, for which Congress has limited the time for challenges, may attack the rule’s validity. NHTSA, for example, reads Raton Gas Transmission Co. v. FERC, 852 F.2d 612, 615-16 (D.C.Cir.1988), as saying that where a party has allowed a statutory period for review to pass, it may attack the rule only under very limited exceptions, not including one for enforcement proceedings themselves. Mercedes-Benz, by contrast, cites NLRB Union v. FLRA, 834 F.2d 191, 195-96 (D.C.Cir.1987), for the view that a party may always, as a defense to an enforcement proceeding, attack the agency’s authority to promulgate the regulations. In an amicus brief, General Motors reminds us that before Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), pre-enforcement review was normally unavailable altogether. It argues that the combination of Abbott Labs with the congressional practice of imposing time limits should not be taken as forbidding the method of challenging a rule that used to be the only one allowed. As there are plenty of statutes where Congress has coupled a time limit with explicit preclusion of review, see Frederick Davis, Judicial Review of Rulemaking: New Patterns and New Problems, 1981 Duke L.J. 279, 297-308 (charting various congressional treatments of the matter), there is a case for inferring, when Congress provided a time limit but no explicit preclusion, that it intended to leave review open at enforcement — at least as to the rule’s substantive validity. Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 550-51 (3rd Cir.1976).
These authorities are not, ultimately, relevant to the disposition of this case. As to the 1985 model year, Mercedes-Benz objects not to an agency rule but to a congressional standard. NHTSA comes into the picture only because under the Act it “may, by rule, amend the average fuel economy standard ... for model year 1985 ... to a level which [it] determine[s] is the maximum feasible average fuel economy level for [that] model year.” § 502(a)(4), 15 U.S.C. § 2002(a)(4) (1988) (emphasis added). Mercedes-Benz reads this provision as creating a duty in NHTSA “to reevaluate the feasibility of the MYs 1984-1985 CAFE standards in order to ensure their continued validity in light of changing circumstances.” Mercedes-Benz Brief at 42. Mercedes-Benz claims that falling gasoline prices in the early 1980s rendered the 27.5 mpg standard infeasible for 1985 (by raising consumer demand for larger cars), and that NHTSA was bound to change it.
In essence this argument uses congressional provision of an escape hatch (NHTSA’s amendment authority) to (a) turn Congress’s 27.5 mpg standard into the agency’s standard (b) undermine its substantive validity as to any period for which it ceased to be “feasible” as Congress used that term in § 502(a)(4).
This doesn’t add up. A congressional standard is, apart from constitutional infirmities, valid until it is changed. Congress here provided a mechanism for change. Mercedes-Benz failed to invoke that mechanism until after MY 1985 became history. When it did so, NHTSA refused to make the change on the ground that retroactive amendments would disrupt the statutory scheme, and we upheld that refusal. GMC v. NHTSA, 898 F.2d 165 (D.C.Cir.1990). Thus, the standard was lawful unless NHTSA had some duty, in the face of declining gas prices, to amend the 1985 standard on its own initiative.
The statutory text undercuts any argument that NHTSA had such a duty. Congress said that NHTSA “may” amend, not that it “must” or “shall” amend. § 502(a)(4), 15 U.S.C. § 2002(a)(4) (1988). A fortiori, where no one asks for an amendment, NHTSA is not obliged to produce one. Mercedes-Benz argues that because NHTSA must “monitor” the success of the CAFE program and send annual reports to Congress, § 502(a)(2), 15 U.S.C. § 2002(a)(2), it must (therefore) adjust the statutory standard where conditions are appropriate. The conclusion does not follow: requiring NHTSA to monitor and report on the effects of CAFE standards more naturally suggests that Congress simply wished to be kept informed as to the consequences of the law, presumably with a view to making its own adjustments.
Mercedes-Benz also believes that in the proceeding for enforcement of the MY 1985 standard, NHTSA should have entertained Mercedes-Benz’s attack on the MY 1984 standard. The 1984 standard is relevant to the fine for MY 1985 because, had it been lower, Mercedes-Benz would have earned credits that it could have applied against the fine for 1985.
Here, of course, we do not deal with a congressional standard, so we cannot say, as readily as we did for the 1985 standard, that it was valid until amended or until rendered unconstitutional by changed circumstances. But even if we assume Mercedes-Benz’s general claim — that one against whom a NHTSA-promulgated CAFE rule is enforced may challenge its validity at enforcement despite the passage of the statutory time limit — NHTSA prevails anyway, as enforcement of the 1984 standard came and went without Mercedes-Benz’s attacking it. Although Mercedes-Benz was not charged a fine for MY 1984, it was given notice of its shortfall of over $3 million, see J.A. 186 (NHTSA notice to Mercedes-Benz), and it could have seized that occasion for attacking the 1984 standard. See id.; see also § 502(i)(1)(E), 15 U.S.C. § 2002(Z)(1)(E); 49 C.F.R. §§ 511.-11(b)(4), 511.12(a). Although the shortfall produced no fine, being offset by previously accumulated credits, surely that was the moment of enforcement. Any broader view would mean that the object of enforcement of a CAFE standard in any given year (an enforcement) necessarily occurring somewhat after the end of that year) could reach back to attack the standard applying to any past year that directly or indirectly was a source of potential credits. The most expansive view of enforcement challenges could not demand so much.
As Mercedes-Benz’s fine was imposed on the basis of a congressional standard whose constitutionality is not questioned and which has not been amended, the petition for review is
Denied.
. The fine is $5 for every tenth of a mile per gallon by which the manufacturer’s CAFE level falls short of the standard, multiplied by the total number of cars it produced or imported that year. Id.
. In determining feasibility, NHTSA is to consider the "(1) technological feasibility; (2) economic practicality; (3) the effect of other Federal motor vehicle standards on fuel economy; and (4) the need of the Nation to conserve energy.” § 502(e), 15 U.S.C. § 2002(e) (1988).
. When a manufacturer exceeds the applicable CAFE standards in any model year, it earns "credits" that can be used to offset civil penalties in model years in which the manufacturer incurs a shortfall. See § 502(l), 15 U.S.C. § 2002(f). Credits may be carried forward or back for up to three model years. Id.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America ex rel. William G. CARROL, Petitioner-Appellant, v. Robert E. MURPHY, Warden of Auburn State Prison, Auburn, New York, Respondent-Appellee.
No. 480, Docket 28764.
United States Court of Appeals Second Circuit.
Submitted June 2, 1964.
Decided June 8, 1964.
William G. Carrol, pro se.
Amy Juviler, Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., of the State of New York (Samuel A. Hirshowitz, First Asst. Atty. Gen., Barry Mahoney, Deputy Asst. Atty. Gen., on brief), for appellee.
Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.
PER CURIAM.
William G. Carrol, now serving a New York sentence for burglary and grand larceny, petitioned the District Court for the Northern District of New York for a writ of habeas corpus on the ground that his conviction, affirmed by the Appellate Division in People v. Carrol, 18 A.D.2d 934, 238 N.Y.S.2d 558 (2d Dept.1963), resulted in part from the admission of a confession allegedly made in order to procure the release of his wife from custody. Judge Foley dismissed the petition, initially on the ground of failure to complete the New York appellate process and later, after a petition for reconsideration had disclosed that leave to appeal to the Court of Appeals had been denied on the merits, on the basis that coram ~n,obir might be available in New York.
The proceedings in the New York courts subsequent to our decision, on rather similar grounds, in United States ex rel. Martin v. Murphy, 2 Cir., 319 F.2d 897 (1963), order vacated June 1, 1964, demonstrate the unavailability of corain noble in New York in cases where, as here, the voluntary character of a confession had been fully litigated at the criminal trial. See People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962); People v. Liss, 14 N.Y.2d 570, 248 N.Y.S.2d 660, 198 N.E.2d 45 (1964). Indeed, the state does not dispute this. The issue on the merits is serious, relator contending that he had been held for 46 hours and confessed only in order to procure the release of his wife in whose car stolen goods had been planted, and the state responding that the delay in relator's arraignment was sought by his own counsel, that there were good grounds for suspecting the wife and taking her into custody, and that the confession was made on the advice of relator's lawyer. Although all this was developed in the state criminal trial, the general verdict of the jury is not conclusive. Haynes v. Washington, 373 U.S. 503, 515-516, 83 S.Ct. 1336, 10 L.Ed. 513 (1963). We do not wish to decide this issue without further proceedings before the district judge. Accordingly we reverse the order dismissing the petition and remand for appropriate findings and conclusions by the District Court, either on the basis of the state court record alone or on taking further evidence if the judge considers that this would be helpful in resolving disputed factual issues.
Reversed and remanded.
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_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.
J. A. HORNER, et al., Plaintiffs in Error, v. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit.
January 26, 1926.)
No. 7143.
In Error to the District Court of the United States for the Western District of Oklahoma.
Lewis R. Morris and David Tant, both of Oklahoma City, Okl., for plaintiffs in error.
Leslie E. Salter, Asst. U.' S. Atty., of Tulsa, Okl.
PER CURIAM.
Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rules 23 and 24.
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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