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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Dario DICESARE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kathleen FLANNERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose MARIN, Defendant-Appellant.
Nos. 84-5013, 84-5021 and 84-5056.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 8, 1985.
Decided July 10, 1985.
Reinhardt, Circuit Judge, filed concurring opinion.
Christine W.S. Byrd, Los Angeles, Cal., for plaintiff-appellee.
Stanley I. Greenberg, Los Angeles, Cal., Manuel Araujo, Santa Ana, Cal., for defendant-appellant.
Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.
WALLACE, Circuit Judge:
DiCesare and Flannery appeal their convictions entered after conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Marin appeals his conviction after a jury trial. We have jurisdiction under 28 U.S.C. § 1291. We affirm DiCesare’s conviction, but vacate Flannery’s conviction and remand for an evidentiary hearing. We vacate Marin’s conviction and remand for a new trial.
I
In January 1983, the government began investigating DiCesare after he and his wife insisted on depositing large amounts of cash in the First Los Angeles bank without filing the currency transaction reports required by 31 C.F.R. §§ 103.22, 103.25 (1984). On July 25, 1983, Glendale police seized approximately 33 pounds of cocaine at a hotel room in Glendale. DiCesare arrived at the hotel room and provided inconsistent explanations of his presence to the police. He was arrested, but later released.
A team of law enforcement officers from the United States Customs Service, and the Los Angeles and Glendale police departments began a surveillance of DiCesare. During late August, this surveillance revealed meetings and rendezvous between DiCesare and codefendant Marin under secretive and suspicious circumstances. The police observed DiCesare and Flannery drive in DiCesare’s automobile to the home of a suspected drug trafficker. Upon their return to Flannery’s apartment, DiCesare switched vehicles to Flannery’s BMW and returned to his apartment in Marina del Rey. Later, DiCesare placed a suitcase in the BMW’s trunk. The officers requested a narcotics canine, which “alerted” to the presence of narcotics in the trunk.
On the basis of these observations, Special Agent Rodriguez, a customs officer who had participated in the surveillance, obtained a search warrant for DiCesare’s and Flannery’s apartments from a Glendale municipal court judge. The search of DiCesare’s apartment revealed large quantities of cash, cocaine, other narcotics trafficking paraphernalia, and several envelopes containing large amounts of currency addressed to an attorney. The BMW also was searched, and the suitcase in the trunk contained six pounds of cocaine and a balance scale. Both DiCesare and Marin were arrested in DiCesare’s apartment. When the officers searched Flannery’s apartment, they found cocaine, paraphernalia and cocaine trafficking notations. Flan-nery also was arrested.
When Marin was arrested, he had a small child with him. The officers took custody of the child, and then drove to Marin’s apartment in an attempt to locate the child’s mother. Outside Marin’s apartment, the officers stopped Liguori, DiCe-sare’s secretary, and searched her purse. It contained an envelope addressed to the same attorney as the envelope containing currency that had been found in DiCesare’s apartment. The envelope found in Liguo-ri’s purse contained $9,700 in cash. The officers arrested Liguori. A later inventory search of the purse revealed cocaine and a rental receipt for Marin’s apartment.
At Marin’s apartment, the officers met several Spanish-speaking occupants. Although it is not clear whether the officers received permission to enter or whether the occupants understood why the officers were present, the officers entered the apartment with the avowed purpose of returning the child. Once in the apartment, the officers observed the following items in plain view: a utility bill with DiCesare’s name on it, a note pad containing figures that, in the officers’ opinions, were consistent with cocaine trafficking, and a large green suitcase. The officers first secured the apartment, and then requested a narcotics canine. When the dog arrived, it entered the apartment and alerted to the suitcase. Two hours after their initial entry, the officers decided to obtain a search warrant, and detained the occupants for several hours while awaiting the warrant. The search revealed $2,000 in cash next to an envelope addressed to the same attorney as the envelopes found in DiCesare’s apartment and Liguori’s purse. The search of the suitcase revealed no contraband.
DiCesare, his wife Beatrice, Flannery, Marin, and Liguori were indicted for a conspiracy in violation of 21 U.S.C. § 846 (count one: conspiracy to possess or distribute cocaine). In addition, Flannery and the DiCesares were indicted for the following violations: 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute) (count four: DiCesare and Flannery; count two: DiCesare alone); 18 U.S.C. § 924(c) (count three: carrying a firearm during a felony) (DiCesare alone); 26 U.S.C. § 5861(h) (count five: possessing a firearm with an obliterated serial number) (DiCe-sare alone); 18 U.S.C. § 371 and 31 U.S.C. §§ 5313, 5322 (count six: conspiracy of and a willful failure to report a domestic currency transaction) (both DiCesares). The firearm serial violation was later dismissed. Beatrice DiCesare entered a guilty plea, while Liguori’s charges were dismissed after she cooperated; neither is a party to this appeal. Both DiCesare and Flannery entered conditional guilty pleas under rule 11(a)(2), Fed.R.Crim.P. Pursuant to the plea agreement, counts two and three were dismissed against DiCesare at the time of sentencing, and count four was dismissed against Flannery. Marin entered a plea of not guilty, and was convicted by a jury on count one.
II
We first address the issues raised by DiCesare and Flannery, who joined in the motions of her co-defendants.
A.
DiCesare and Flannery contend that the district court erred by denying their motions for hearings required by Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (Franks). There are five requirements for a sufficient motion for a Franks hearing: (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983) (Kiser).
We review the denial of a Franks hearing de novo. See, e.g., United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985). DiCesare argues that five statements or omissions in Rodriguez’s affidavit warranted a hearing: (1) he used information from a search that was quashed three years previously; (2) he referred to an earlier arrest but failed to relate that the state subsequently declined to prosecute; (3) he advised the magistrate that the apartment trash revealed evidence of narcotics transactions when the trash could have been commingled; (4) he failed to disclose the unreliability of the canine; and (5) he misrepresented that DiCesare was using an alias.
An examination of DiCesare’s moving papers reveals only two allegations that arguably suffice to show an intentional or reckless omission or misstatement by Rodriguez: (1) the inclusion of the results from a three year old search, and (2) whether the trash could have been examined since it was deposited in a large common container. Thus, the remaining three statements fail to qualify. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684; Kiser, 716 F.2d at 1271. There was no error in the denial of a hearing on those two statements, however, because a hearing is required only if the challenged information is necessary to find probable cause. See id. Even without these statements in the affidavit, we conclude that the other allegations in the affidavit supported a finding of probable cause. Therefore, we affirm the district court’s denial of DiCesare’s and Flannery’s motion for a Franks hearing.
B.
Both DiCesare and Flannery argue that the district court erroneously denied their motions for other evidentiary hearings. We review the denial of an evidentia-ry hearing for an abuse of discretion. See United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.), amended on other grounds, 609 F.2d 433 (1979) (order).
Flannery argues that the disputed facts surrounding the execution of the search warrant at her apartment on August 26 and a second entry on September 14 require an evidentiary hearing. On August 26, the officers executed the search warrant for Flannery’s and DiCesare’s apartments. When they arrived at Flannery’s apartment, the main door was open, but the screen door was closed and locked. In Flannery’s declaration, she stated that the officers forcibly entered and announced simultaneously, and that “[pjrior to breaking open the door, none of the officers knocked, announced their identity, or stated the purpose of their presence.” Upon entry, Flannery stated that she was assaulted and verbally abused. The officer declared, however, that he saw Flannery speaking on the telephone and announced the presence of the police. He stated that Flannery became hysterical, dropped the telephone, and turned as if to flee. He then forcibly entered to prevent possible destruction of evidence. He flatly denied the occurrence of an assault and verbal abuse. Flannery introduced photographic exhibits supporting her version of the entry, and a supporting declaration of her sister to whom she was speaking at the time of the entry. Flannery’s sister declared that she heard the sound of entry, an announcement, and then obscenities and statements indicating a beating was taking place.
Flannery asserts that the officers violated 18 U.S.C. § 3109, the “knock and announce” statute. If the officers did violate the statute, the evidence seized during the search must be suppressed. See Miller v. United States, 357 U.S. 301, 313-14, 78 S.Ct. 1190, 1197-98, 2 L.Ed.2d 1332 (1958). The sworn statements and exhibits present directly contradictory accounts of the sequence of events, and thus whether the officers complied with the statute. We conclude that Flannery made an offer of proof “sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Ledesma, 499 F.2d 36, 39 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). Thus, an evidentiary hearing was required. See id. Moreover, this error was not harmless, because the search uncovered cocaine, paraphernalia, and papers suggestive of narcotics trafficking. We conclude that the district court abused its discretion by denying an evidentiary hearing on the August entry.
On September 14, the officers returned to Flannery's apartment with an arrest warrant. There is no dispute that her outside door was open, and that the inner screen door was closed but unlocked. When the officers arrived, they observed guests seated at a dining table, but did not see Flannery. According to Flannery, the officers merely entered and apprehended her without knocking or announcing their identity and purpose. According to the officers, they asked for Flannery, announced their identity and when Flannery entered the room, then entered to arrest her. Once again, the affidavits present contradictory reports of these events. Although section 3109 by its terms applies only to search warrants, the Supreme Court has held that the same criteria apply to arrests. See Miller, 357 U.S. at 306, 78 S.Ct. at 1194. If the officers failed to announce their identity and purpose or simultaneously did so and entered, they violated the section 3109 criteria. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Such a violation would not be harmless, because the incident search revealed additional tangible evidence.
We conclude that the affidavits establish a sufficiently definite offer of proof to require a hearing on the September entry and that the district court abused its discretion by denying the hearing. Ledesma, 499 F.2d at 39.
Both DiCesare and Flannery also appeal the denial of evidentiary hearings on whether the search of their apartment exceeded the scope of the warrant. We conclude that the district court did not abuse its discretion. Such a hearing is required only when there is a dispute concerning issues of fact relevant to the legality of the search. Id. See also United States v. Hickock, 481 F.2d 377, 379 (9th Cir.1973) (denial of an evidentiary hearing on a motion to suppress is not error when the movant presents no factual issues). In this case, DiCesare and Flannery do not contest the inventory of items obtained pursuant to the search. Thus, there were no facts in dispute relating to the scope of the search and we are unable to conclude that the district court abused its discretion by denying the request for a hearing. See, e.g., id.
DiCesare challenges the denial of an evidentiary hearing on the search of his secretary Liguori’s handbag. DiCesare, however, has no standing to challenge that search. For standing purposes, the only connection between DiCesare and Liguori was their joint criminal venture. We have rejected standing on that basis alone. See United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 509, 83 L.Ed.2d 399 (1984).
C.
Flannery argues that the search warrant for her apartment was unsupported by probable cause. We review the magistrate’s determination of probable cause under the “substantial basis” standard. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984). The affidavit presented the magistrate with three factual situations: (1) several meetings during a three-day period with DiCesare, including one on a boat during which the participants appeared to be using cocaine; (2) Flannery and DiCesare drove together to the home of a suspected narcotics trafficker and switched vehicles upon their return; and (3) a narcotics canine alerted to a suitcase DiCesare placed in the trunk of Flannery’s BMW. The canine’s sniff of the trunk was not a “search” requiring probable cause. See, e.g., United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983); United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). We conclude that under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to search Flannery’s car and her apartment.
D.
DiCesare and Flannery assert that Rodriguez, as a Customs officer, lacked authority to obtain a state search warrant. They argue that both rule 41(a), Fed.R. Crim.P., and 26 U.S.C. § 7607(1) prohibit Rodriguez from executing a state search warrant. We need not decide this issue, because even if they 'are correct, suppression would not be required. Both state and federal officers participated in the investigation and executed the warrant; had it been a state officer rather than Rodriguez who had done so, its validity would not be in question. Therefore, if a defect existed, it was merely a technical defect, and did not implicate any constitutional violations. See, e.g., United States v. Payner, 447 U.S. 727, 731-33, 100 S.Ct. 2439, 2444-45, 65 L.Ed.2d 468 (1980) (evidence should not be suppressed unless the defendant’s constitutional rights are violated). Since the warrant was supported by probable cause and was not executed improperly, no circumstances are present that warrant suppression. See, e.g., United States v. Harrington, 681 F.2d 612, 614-15 (9th Cir.1982); United States v. Pennington, 635 F.2d 1387, 1390 (10th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).
E.
DiCesare and Flannery argue that the Customs Service narcotics canine training manual should have been disclosed, because it provided information to attack the reasonableness of relying on responses of the dogs. Federal regulations prohibit disclosure “to the extent that [it] would ... [d]isclose investigative techniques and procedures.” 19 C.F.R. § 103.12(g)(5) (1984). DiCesare and Flannery argue that disclosure was proper because the government's papers filed in opposition were not proper and because the manual contained portions that, if disclosed, would not compromise investigative techniques. The district court reviewed the manual in camera and determined that disclosure of chapters three through five of the manual would involve such a compromise, and declined to order discovery. Even if the district court erred, however, we conclude that any error was harmless because DiCesare and Flannery were provided with the most critical information: the actual training records of the dogs used in the searches, and chapters one and two of the manual on dog training.
F.
DiCesare and Flannery argue that the indictment was insufficiently specific, thereby necessitating a bill of particulars. A bill of particulars is appropriate when the indictment is insufficient to per- . mit the preparation of an adequate defense. See Fed.R.Crim.P. 7(f); see, e.g., United States v. Inryco, Inc., 642 F.2d 290, 295 (9th Cir.1981), cert. dismissed, 454 U.S. 1167, 102 S.Ct. 1045, 71 L.Ed.2d 324 (1982). DiCesare and Flannery requested a bill for three reasons: (1) to obtain the names of any unknown coconspirators; (2) to determine the exact date on which the conspiracy allegedly began; and (3) to delineate all other overt acts that comprised the charged activity. These reasons, however, do not warrant a bill of particulars. See, e.g., United States v. Long, 449 F.2d 288, 294-95 (8th Cir. 1971) (exact times), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972); Wilkins v. United States, 376 F.2d 552, 562-63 (5th Cir.) (names of all coconspirators), cert. denied, 389 U.S. 964, 88 S.Ct. 342, 19 L.Ed.2d 379 (1967); Cook v. United States, 354 F.2d 529, 531 (9th Cir.1965) (all overt acts). Moreover, neither DiCesare nor Flannery specified any prejudice or surprise resulting from the denial of the bill. See, e.g., United States v. Davis, 582 F.2d 947, 951 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979); United States v. Cooper, 577 F.2d 1079, 1089 (6th Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978). The district court’s denial of the motion was not an abuse of discretion.
G.
Both DiCesare and Flannery moved for a severance under rule 14, Fed. R.Crim.P., because they wished to testify on one count but not on all counts. To justify severance on this ground, a defendant “must show that he has important testimony to give on some counts and a strong need to refrain from testifying on those he wants severed.” United States v. Nolan, 700 F.2d 479, 483 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). Neither DiCesare nor Flannery made any such showing in their moving papers, and each failed to list “the specific testimony he will present about one offense, and his specific reasons for not testifying about others.” United States v. Bronco, 597 F.2d 1300, 1303 (9th Cir.1979) (Bronco).
Flannery also requested severance because she was not charged on several counts and feared prejudice from testimony relating to those offenses. Separate offenses, however, may be tried together if a conspiracy existed that links them together. See, e.g., United States v. Abushi, 682 F.2d 1289,1296-97 (9th Cir.1982). The conspiracy charged in count one was sufficient to link all the offenses. Moreover, Flannery’s allegations of prejudice are insufficient. The policy in favor of joint trials outweighs the prejudicial impact of testimony about other offenses unless the right to a fair trial is abridged. See, e.g., United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980); Bronco, 597 F.2d at 1303. Flannery makes no such allegation in her moving papers. Thus, the denial of the severance motions was not an abuse of discretion.
Ill
We need discuss only three of the issues raised by Marin.
A.
Marin asserts that the evidence obtained during the search of his apartment must be suppressed. We agree. The following factual sequence is undisputed. The officers arrived at Marin’s apartment with the child, sought permission to enter, and then entered, perhaps even with permission. Once inside the apartment, the officers observed a utility bill with DiCesare’s name on it, and a note pad containing figures consistent with cocaine trafficking. At this point, the officers secured the premises, questioned the occupants and called for a narcotics canine. Upon arrival, the dog alerted to a green suitcase in Marin’s living room. Based on this information, the officers sought a search warrant and executed it some six hours after the initial entry, during which time the occupants were detained.
In Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Supreme Court observed that “[different interests are implicated by a seizure than by a search. A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests.” Id., 104 S.Ct. at 3387 (citations omitted). The Court then upheld the seizure of a dwelling prior to the execution of a warrant because the agents had probable cause unconnected with the seizure. Id. at 3389. Although the Court pointed to two instances in which seizures of property have been permitted on less than probable cause, see id. at 3387 n. 6 (postal packages and suitcases at airports), the Court made it clear that probable cause is necessary to seize a private home. See id. at 3387-91.
The seizure of Marin’s apartment was completed before the narcotics canine arrived; the occupants already had been detained, and additional officers had arrived. Assuming a valid entry, when the seizure occurred the officers had observed only two plausible pieces of evidence in plain view — the utility bill and the note pad. We conclude that under the totality of the circumstances, these items fail to provide the probable cause necessary to seize or search the apartment. See Segura, 104 S.Ct. at 3386-87 (using the “totality of the circumstances” test).
The government argues, however, that the warrant should be upheld because the dog was merely another police officer, its entry was therefore lawful and not an incremental intrusion on Marin’s privacy or possessory interests, and its sniff of the green suitcase was not a search. We need not decide whether the dog’s entry should be treated like that of any police officer or whether the sniff of a suitcase in a private home is a search. Cf. United States v. Place, 462 U.S. at 707, 103 S.Ct. at 2644 (sniff of a suitcase in a public place is not a search). These issues are irrelevant in this case. Even if the dog’s entry and subsequent sniff were lawful, the acquisition of probable cause during an unlawful seizure does not cure the illegality and does not constitute an independent source of probable cause. See United States v. Taheri, 648 F.2d 598, 600-01 (9th Cir.1981). The use of the canine was a direct and proximate result of the illegal seizure. But for the seizure, the officers would not have requested the dog, and but for the alert, probable cause did not exist to search the apartment. See Segura, 104 S.Ct. at 3391-92. If we upheld the admissibility of this evidence, we would encourage police to seize private dwellings without probable cause, then to bring in trained dogs to locate contraband in order to obtain the probable cause necessary for a warrant. Officers cannot seize a dwelling to find probable cause — first they must have probable cause to seize a dwelling. See id. at 3390-91.
Finally, we conclude that the failure to suppress was not harmless beyond a reasonable doubt. The police uncovered $2,000 in cash next to an envelope identical to the envelopes found in DiCesare’s apartment and Liguori’s purse, with the name of the same attorney written on it. This is significantly probative evidence of Marin’s membership in the conspiracy, the only offense for which he was charged. Therefore, we hold that the district court erroneously failed to suppress this evidence and that Marin is entitled to a new trial without the admission of the evidence seized at his apartment.
B.
Marin also argues that the district court erred by denying his motion to strike evidence admitted against him from the Glendale seizure on July 25,1983, involving DiCesare. On that date, officers seized approximately 33 pounds of cocaine and other items. Marin argues that it was error to deny the motion because insufficient evidence connected him to the events of July 26. We review this issue for an abuse of discretion. Cf. United States v. Ordonez, 737 F.2d 793, 811 (9th Cir.1984) (evidentiary rulings in general).
The seizure of July 25 and the surrounding events were among the overt acts in the conspiracy indictment against Marin. The existence of separate conspiracies is a question of fact, not of law, to be determined by the jury. See, e.g., United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). A defendant need not participate in all phases of a conspiracy to be part of a single conspiracy. See, e.g., United States v. Burreson, 643 F.2d 1344, 1348 (9th Cir.), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106 (1981).
The district court instructed the jury to acquit if they found that Marin was a member of an uncharged conspiracy. Marin did not object to this instruction, although he now argues that it was an inadequate multiple conspiracy instruction. A proper instruction would cure an erroneous denial of the motion to strike. Since Marin did not object, however, we can reverse only if the instruction was plainly erroneous. See, e.g., United States v. Hall, 650 F.2d 994, 998 (9th Cir.1981) (per curiam); Fed.R.Crim.P. 52(b).
Even if the government failed to show a connection between Marin and the conspiracy on July 25, Marin is not absolved of liability. “[A] conspirator who joins a pre-existing conspiracy is bound by all that has gone on before in the conspiracy.” United States v. Saavedra, 684 F.2d 1293, 1301 (9th Cir.1982). If sufficient evidence supports Marin’s joinder in the conspiracy, and the conspiracy included the July 25 events, then the evidence properly may be used against him. Since we are remanding for a new trial, we need not decide the factual question now. We conclude, however, that the district court did not abuse its discretion by denying the motion to strike, and that the curative jury instruction was not plainly erroneous.
C.
Our decision to vacate Marin’s conviction does not relieve us of the responsibility to address Marin’s argument that the evidence was insufficient because if he is correct, his retrial would be barred by the double jeopardy clause. See, e.g., United States v. Bibbero, 749 F.2d 581, 585-86 (9th Cir.1984) (Bibbero); United States v. Harmon, 632 F.2d 812, 814 (9th Cir.1980) (per curiam) (Harmon). See also Tibbs v. Florida, 457 U.S. 31, 40-42, 102 S.Ct. 2211, 2217-18, 72 L.Ed.2d 652 (1982). In our review, however, we must consider all the evidence admitted at trial, including illegally obtained evidence, because “[i]t is impossible to know what additional evidence the government might have produced had the faulty evidence been excluded at trial, or what theory the government might have pursued had the evidence before the jury been different.” Harmon, 632 F.2d at 814; see Bibbero, 749 F.2d at 586 n. 3.
Our review of the evidence in the light most favorable to the government convinces us that a rational trier of fact could have found the elements of a conspiracy beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984). Marin assisted DiCesare in counting large sums of cash. He and DiCesare met with couriers at the airport. They met several times under suspicious circumstances and with secretive precautions. Identical envelopes bearing the same attorney’s name were found in both Marin’s and DiCesare’s apartments. DiCe-sare maintained Marin’s apartment and DiCesare was involved in cocaine trafficking.
We need not address Marin’s other arguments since the illegal seizure of his apartment requires a new trial.
We affirm DiCesare’s conviction, vacate Marin’s conviction and remand for a new trial, and vacate Flannery’s conviction and remand for an evidentiary hearing on whether the officers complied with the knock and announce statute during both the August and September entries. Since we find no merit to any of Flannery’s other assigned errors, if the district court finds after a hearing that the officers complied with the statute or that their compliance was excused, the district court may re-enter her conviction.
No. 84-5013: AFFIRMED.
No. 84-5021: VACATED AND REMANDED.
No. 84-5056: VACATED AND REMANDED.
. The concurrence suggests that dogs cannot be used to search private homes without the consent of the occupants, even if probable cause exists. It also suggests that, unless such consent is obtained, the use of dogs will be a barbaric procedure reminiscent of Nazi Germany and the pre-Civil War South. The standard proposed, consent in addition to probable cause, is a much higher standard than that of the fourth amendment, in which we may rely solely on probable cause.
No court that has considered the use of canines has suggested that their use is subject to any standard other than probable cause or one of its exceptions. See, e.g., United States v. Place, 462 U.S. at 701-07, 103 S.Ct. at 2641-44; United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985) (recognizing that a dog sniff of the exterior of a dwelling is more intrusive than the search of luggage at an airport, thus requiring probable cause); United States v. Beale, 736 F.2d 1289, 1290-92 (9th Cir.) (en banc) (discussing whether a particular dog sniff is a search subject to the fourth amendment), cert. denied, — U.S.-, 105 S.Ct. 565, 83 L.Ed.2d 565 (1984).
Since the seizure of Marin’s apartment took place without probable cause, we do not need to decide whether the use of the dog required something more than probable cause. Nor do we believe that it is appropriate to reach out to do so. We leave for another case whether a dog that may sniff a suitcase in an airport without probable cause, and sniff the exterior of a dwelling pursuant to a valid warrant, may cross the threshold of a home if the officers accompanying it have probable cause.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_prejud
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E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellant, v. Sylvester ANDREWS, Defendant-Appellee.
No. 87-3109.
United States Court of Appeals, Eleventh Circuit.
Aug. 4, 1988.
Thomas E. Morris, Ernst D. Mueller, Asst. U.S. Attys., Jacksonville, Fla., Patty Merkamp Stemler, U.S. Dept, of Justice, Appellate Section/Criminal Div., Washington, D.C., for plaintiff-appellant.
Rosemary T. Cakmis, H. Jay Stevens, Federal Public Defenders, Jacksonville, Fla., for defendant-appellee.
Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX , Circuit Judges.
COX, Circuit Judge, became a member of the court after this appeal had been orally argued but has participated in this decision after listening to a recording of oral argument. See Eleventh Circuit Rule 34-4(g).
EDMONDSON, Circuit Judge:
This case concerns an inconsistency between jury verdicts finding one alleged co-conspirator guilty and the other not guilty in a joint trial. The indictment charged that defendant-appellee Sylvester Andrews and his co-defendant Robert Ford “did ... conspire ... together with each other to distribute cocaine.” When Andrews and Ford were tried together, the jury found Andrews guilty of conspiracy while finding Ford not guilty. The district court then granted Andrews’ motion for a judgment of acquittal based upon Herman v. United States, 289 F.2d 362 (5th Cir.1961), in which we held that “where all but one of the charged conspirators are acquitted, the verdict against the one will not stand.” Id. at 368. A panel of this Court affirmed Andrews’ judgment, stating that “[w]hile we think the full court may wish to reconsider Herman and its progeny, we are, for now at least, overcome by precedent.” United States v. Andrews, No. 87-3109, at 7 (11th Cir. Oct. 27, 1987) [833 F.2d 1019 (table)] (unpublished, non-argument calendar opinion). The panel’s opinion has been vacated by the full Court; we now overrule Herman and reverse Andrews’ judgment of acquittal.
NO CONSTRUCTIVE AMENDMENT
As a preliminary matter, before revisiting the issue in Herman, we address a separate question raised by Andrews. The indictment in this case charged that Ford and Andrews “did ... conspire ... together with each other to distribute cocaine”; no reference was made to other co-conspirators, named or unnamed. At trial, the district court gave a standard jury instruction on conspiracy law. The instruction read, in part, as follows:
In order to establish a conspiracy offense, it is not necessary for the government to prove that all of the people named in the indictment were members of the scheme or that those who were members had entered into any formal type of agreement.
... What the evidence in the case must show beyond a reasonable doubt is, first, that two or more persons in some way or manner came to a mutual understanding to try to accomplish a common and unlawful plan as charged in the indictment;
Now, a government agent, such as a confidential source or a police officer, cannot be a co-conspirator inasmuch as he is working for the government. Accordingly, in order to find one or both of the defendants guilty of the crime of conspiracy, you must find that each of them conspired with someone other than a government agent.
Record, vol. 2, at 289-91. Andrews contends that these isolated statements of the district court constructively “amended” the indictment in violation of his due process rights. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). According to Andrews, this supposed amendment would have allowed the jury to convict him of conspiracy with someone other than Ford.
Because Andrews raised no objections to the supposedly improper jury instructions at trial, we review his claim under the “plain error” standard. See Fed. Rule Crim. Proc. 52(b). We examine the district court’s instructions to ascertain whether they “so modifie[d] the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury’s indictment.” United States v. Johnson, 713 F.2d 633, 643 (11th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984). To justify reversal of a conviction, the court’s instructions, viewed in context, must have expanded the indictment “either literally or in effect.” See id.
In its directions to the jury, the district court read the indictment and repeatedly linked the instructions to the indictment. Likewise, the court described the crime of conspiracy in terms of the “defendants” — namely, Ford and Andrews — and not just “persons.” The jury was instructed that it “must follow all of [the court’s] instructions as a whole. You may not single out or disregard any of the Court’s instructions on the law.” Record, vol. 2, at 284. And, in response to a question from the jury, the court chose to send the jury the whole packet of instructions along with the indictment. Id. at 305-11.
It is also crucial to examine the court's instructions in the light of the trial itself. The Record clearly reveals that the government’s evidence and arguments targeted the alleged conspiracy between Ford and Andrews; never did the government attempt to show that Andrews conspired with some other person allegedly present at the scene of the crime. The government called no witnesses — other than the government informant — who arguably could have participated in the drug deal. In fact, at trial Andrews and Ford — not the government-argued that other persons were present and could have been involved in the deal.
In the seminal case of Stirone v. United States, the Supreme Court pronounced the “rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Stirone, 361 U.S. at 215-16, 80 S.Ct. at 272; see also id. at 217, 80 S.Ct. at 273 (“a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.”). The “amendment” in Stirone occurred when the district court gave an instruction, over defendant’s objection, that expanded the charge to include not only sand but steel shipments, and the government offered evidence of both. See id. at 214-15, 80 S.Ct. at 271-72. The Supreme Court concluded that, “While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Id. at 217, 80
5.Ct. at 273.
No such amendment occurred in the instant case. The government never argued anything other than a conspiracy between Ford and Andrews. The district court’s instructions, although perhaps ambiguous in part, did not impermissibly expand the scope of the indictment. Andrews was not tried for an offense different from the offenses alleged in the indictment. The Herman issue is properly before us.
HERMAN v. UNITED STATES
In Herman, defendant-appellant George Herman and several co-defendants were indicted for conspiracy to ship and to receive stolen goods. Herman, 289 F.2d at 365. At their joint trial, the jury found Herman guilty and found his co-defendants not guilty. Id. On appeal the Herman Court noted that “[a] conspiracy cannot be committed by a single individual acting alone; he must act in concert with at least one other person.” Id. at 368. From this irrefutable proposition we made a precipitous leap: “where all but one of the charged conspirators are acquitted, the verdict against the one will not stand.” Id. Subsequent decisions of this Court have severely limited Herman’s reach, and we have never actually used it to reverse another conviction. Still, until today the whole court had not been called upon to revisit the precise issue in Herman, which involved the acquittal of all but one jointly charged, jointly tried co-conspirators.
A long line of United States Supreme Court precedent provides that “inconsistent jury verdicts among multiple defendants tried together on essentially the same evidence do not provide grounds for overturning an otherwise valid jury verdict which has adequate evidentiary support.” United States v. Irvin, 787 F.2d 1506, 1512 (11th Cir.1986) (criticizing Herman). See, e.g., Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 475, 83 L.Ed.2d 461 (1984). Thus, the Supreme Court has stated that “[ijnconsis-tency in a verdict is not a sufficient reason for setting it aside. We have so held with respect to inconsistency between verdicts on separate charges against one defendant, ... and also with respect to verdicts that treat codefendants in a joint trial inconsistently.” Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981) (citing Dunn and Dotterweich)
Recently, the Supreme Court reaffirmed that “there is no reason to vacate [a criminal defendant’s] conviction merely because the verdicts cannot rationally be reconciled.” Powell, 469 U.S. at 69, 105 S.Ct. at 479. Citing Dunn, the Powell Court stated that “where truly inconsistent verdicts have been reached, ‘[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ” Id. at 64,105 S.Ct. at 476 (quoting from Dunn, 284 U.S. at 393, 52 S.Ct. at 190). The Court discussed three reasons for “insulating” jury verdicts from attack on “inconsistency” grounds — “the Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity.” Id., 469 U.S. at 69, 105 S.Ct. at 479. Thus, “with few exceptions, ... once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury’s collective judgment.” Id. at 67, 105 S.Ct. at 477.
Upon reconsideration of the consistency issue as a full Court, we overrule Herman. Consistent verdicts are unre-quired in joint trials for conspiracy: where all but one of the charged conspirators are acquitted, the verdict against the one can stand. The compelling rationale of Dunn and its progency, including Powell, brings us to this conclusion. Andrews urges us to view the jury’s verdict in favor of Ford as a finding that no conspiracy existed between Andrews and Ford. There are, however, explanations for this inconsistency that have nothing to do with whether Andrews actually conspired with Ford to commit a crime. It is just as likely that the admittedly inconsistent verdicts in this case are “the result of mistake, or lenity, and therefore [they] are subject to the Dunn rationale.” Powell, 469 U.S. at 68, 105 S.Ct. at 479. Under the circumstances, “the best course to take is simply to insulate jury verdicts from review on this ground.” Id. at 69, 105 S.Ct. at 479.
Our holding today leaves criminal defendants with substantial protection. As the Supreme Court noted in Powell, “a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts.” Id., 469 U.S. at 67, 105 S.Ct. at 478.
Enough evidence of a conspiracy between Andrews and Ford exists to support the jury’s verdict against Andrews. The testimony of a government informant, a police officer, and a detective implicated the two co-defendants in the sale of cocaine which formed the basis of the indictment in this case. Although Andrews attacks the credibility and accuracy of the government witnesses’ testimony, the evidence certainly “could support [a] rational determination of guilty beyond a reasonable doubt.” Id. (citing Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).
Accordingly, we REVERSE the district court’s judgment of acquittal. We remand the case so that the district court can reinstate Andrews’ conviction under Count One (the conspiracy charge) and so that sentencing can take place.
. Count One of the indictment charged as follows: “In or about early August, 1986, ... in the Middle Judicial District of Florida, [Ford and Andrews] ... did unlawfully ... combine, conspire, confederate and agree together with each other to distribute cocaine" in violation of 21 U.S.C. sections 841(a)(1) and 846. The jury found Andrews guilty, and Ford not guilty, under this count. Count Two charged that Ford and Andrews "did ... distribute and cause to be distributed a quantity of cocaine”, “on or about August 7, 1986,” in violation of 21 U.S.C. section 841(a)(1) & 18 U.S.C. section 2. Both Ford and Andrews were found not guilty under this count.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981.
.Record, vol. 2, at 283 (the jury must "And the defendants guilty of the crime charged in the indictment.”); id. at 288 ("the indictment charges ..id. ("you will be given a copy of the indictment’); id. ("Count One charges that the defendant knowingly and willfully conspired together to distribute cocaine"); id. at 290 (the evidence must “show beyond a reasonable doubt” that "two or more persons” engaged in an "unlawful plan as charged in the indictment"); id. at 294 ("a separate crime or offense is charged against one or more of the defendants in each count of the indictment"); id. at 295 ("The defendants are on trial only for the specific offenses alleged in the indictment”).
. Record, vol. 2, at 283; id. at 288; id. at 291; id. at 294; id. at 295.
. In district court, Andrews never contended that the government did otherwise. In his "Motion for Judgment of Acquittal," Andrews acknowledged that *‘[t]he only other persons Mr. Andrews arguably could have conspired with are ‘Git’ and Carlton Smith. Nonetheless, the Government has never alleged — not in the pleadings nor in argument at trial — that Mr. Andrews conspired with anyone other than Mr. Ford.” Record, vol. 1, no. 85, at 3. Again, on appeal, Andrews admits that “the prosecutor did not argue Andrews conspired with anyone other than Ford”, although “the prosecutor referred to the standard jury instruction to the effect that a conspiracy requires ‘two or more persons’ to have a mutual, unlawful understanding." Brief of Appellee Sylvester Andrews on Rehearing En Banc, at 16.
. As we have already noted, the district court gave an explicit instruction that "in order to find one or both of the defendants guilty of the crime of conspiracy, you must find that each one of them conspired with someone other than a government agent.” Record, vol. 2, at 291 (emphasis added).
. See, e.g., Record, vol. 2, at 239-45 (closing argument of Andrews’ attorney); id. at 254-56 (closing argument of Ford’s attorney).
. Ambiguity does not necessarily mean that an alteration of the indictment occurred. And, "[a]s the law of this Circuit makes clear, it is not sufficient simply to demonstrate that an instruction had the potential to confuse a jury.” United States v. Pruitt, 763 F.2d 1256, 1260 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed. 896 (1986).
. Nor do we perceive that a variance occurred such as to prejudice the substantial rights of Andrews. See United States v. Figueroa, 666 F.2d 1375, 1379 (11th Cir.1982) (distinguishing a "constructive amendment" from a "simple variance.”)
. See, e.g., United States v. Mosquera, 779 F.2d 628, 630 (11th Cir.1986) (a single conviction will stand so long as the indictment alleges that the defendant conspired with others “known and unknown” and sufficient evidence supports the conviction); United States v. Irvin, 787 F.2d 1506, 1512-13 (11th Cir.1986) (Herman does not apply when some or all of the alleged co-conspirators were acquitted in a separate trial). Several opinions have strongly questioned the current validity and correctness of Herman. See, e.g., id. (citing United States v. Espinosa-Cerpa, 630 F.2d 328 (5th Cir.1980)).
. For general background on the "rule of consistency", see Comment, The Unnecessary Rule of Consistency in Conspiracy Trials, 135 U.Pa.L. Rev. 223 (1986).
. None of the "exceptions” noted by the Supreme Court in Powell, 469 U.S. at 67, 69 n. 8, 105 S.Ct. at 477, 479 n. 8, even remotely applies to the instant appeal.
. The district court correctly determined that Herman controlled its decision to acquit Andrews. Likewise, in affirming Andrews’ judgment of acquittal, our panel “recognize[d] that the inconsistent verdicts reached in Powell differ conceptually from the ‘inconsistency’ that underlies this appeal; so Herman was not overruled by Powell and Herman continues to bind us when ‘all but one of the charged conspirators are acquitted_’” Andrews, No. 87-3109, at 5-6 (quoting Herman, 289 F.2d at 368). Absent a clear, contrary holding by the Supreme Court, our panel and the district court adhered to our usual policy and considered themselves bound by Herman.
In Powell, the Supreme Court upheld a jury verdict that found the defendant-appellant guilty of using the telephone to facilitate a felony, yet innocent of the predicate felony. Powell, 469 U.S. at 60, 105 S.Ct. at 474. The instant case differs conceptually from Powell because Andrews was found guilty under a conspiracy charge that named only him and one other co-defendant, Ford, who was found not guilty. Cf. Dotterweich, 320 U.S. at 279, 64 S.Ct. at 135 (affirming conviction under verdict finding the president of a corporation guilty of introducing adulterated or misbranded drugs into commerce, but acquitting the corporation of the same charge); Harris, 454 U.S. at 340-48, 102 S.Ct. at 462-66 (denying relief to habeas petitioner who was convicted in state court in joint trial even though petitioner’s three co-defendants — who were found not guilty — allegedly participated in the same burglary).
. It is noteworthy that the United States Court of Appeals for the Ninth Circuit recently has rejected its own traditional "inconsistent jury verdict" rule as it pertains to conspiracies. The court stated as follows:
Because of the [United States v. Powell] decision, the broad language from [Lubin v. United States, 313 F.2d 419, 422-23 (9th Cir.1963) ] to the effect that the acquittal of all but one of the alleged co-conspirators requires the acquittal of the remaining defendant can no longer be relied upon.
United States v. Valles-Valencia, 823 F.2d 381, 382 (9th Cir.), modifying 811 F.2d 1232 (9th Cir.1987). Because they perceived the significance of Powell to be so clear and powerful, the Valles-Valencia panel even rejected the need for an en banc hearing before overruling the circuit’s precedent. Id.
. We believe that Judge Clark’s view of the Record — especially his transcript of the tape recording — invades the jury’s province as factfinder and, more important, is mistaken. The following facts are undisputed. The jury instructions — to which there was no objection — told the jury that "the defendants are on trial only for the specific offenses alleged in the indictment.” Andrews was indicted for conspiring only with Ford. The government argued for and introduced evidence of the Andrews-Ford conspiracy. Although on cross-examination the government, seeking to impeach Andrews’ story that others were involved, asked questions about his direct testimony, the government never argued that Andrews conspired with someone other than Ford or that Andrews could be convicted for conspiring with someone other than Ford, From these facts, we conclude that Andrews was tried for conspiring with Ford.
These facts make our case different from the cases cited by Judge Clark, including United States v. Salinas, 654 F.2d 319 (5th Cir. Unit A 1981), the case upon which he relies most heavily. In Salinas, Salinas was charged in the indictment with aiding and abetting a specific bank president, Woodul, in the misapplication of bank funds. At trial, no evidence linked Woodul to the improper bank loan. Put differently, no evidence supported the offense as charged in the indictment. The evidence showed that the aided and abetted person was actually another bank officer, Nance. The trial judge — faced with this difficulty — simply charged the jury that, if Salinas aided any bank officer, Salinas could be found guilty. A Fifth Circuit panel concluded that Salinas had not been tried and convicted for the same offense for which he had been indicted. We accept Salinas as precedent, but this case is unlike Salinas. In this case, evidence supported the offense charged in the indictment, and the trial judge repeatedly tied his jury instructions to the specific crime as charged in the indictment. For a case more similar to ours and rejecting a constructive amendment claim, see United States v. Ylda, 653 F.2d 912 (5th Cir. Unit A 1981).
On the Herman issue, Judge Clark says that this case is controlled by Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534 (1944). But, Hartzel cannot control this case because Hartzel is not an inconsistent jury verdict case. In Hartzel, the “only co-conspirators of petitioner named in the indictment” had their convictions set aside by judges on the ground of insufficient evidence. The Supreme Court did not address the significance of an acquittal of co-conspirators by a jury where the evidence would have allowed a verdict of guilty. Here, the trial judge found enough evidence of conspiracy to let the case against both defendants go to the jury, and we have found sufficient evidence to support a guilty verdict against Ford (had the jury found him guilty) or Andrews or both. Powell teaches us that a not-guilty verdict for Ford is not the same thing as a finding of insufficient evidence to allow a conviction.
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_r_bus
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LORD BALTIMORE PRESS, INC., Respondent.
No. 8416.
United States Court of Appeals Fourth Circuit.
Argued Jan. 5, 1962.
Decided March 19, 1962.
Glen M. Bendixsen, Attorney, National Labor Relations Board (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Attorney, National Labor Relations Board, on the brief), for petitioner.
Earle K. Shawe, Baltimore, Md. (Sidney J. Barban, William J. Rosenthal, and Larry M. Wolf, Baltimore, Md., on the brief), for respondent.
Before SOPER, BRYAN and BELL, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge.
The order of the National Labor Relations Board requiring The Lord Baltimore Press to bargain with Amalgamated Lithographers of America is here resisted, fundamentally, upon the assertion that the election favoring the union as the collective bargaining representative of Baltimore’s employees was unfairly conducted. The immediate challenge is to the Board’s refusal to accord Baltimore a hearing on its exceptions to the election.
We stay the order’s enforcement because of the Board’s denial of the hearing. The election’s validity is thus made a premature question, to await the outcome of the further proceedings we order.
On May 8, 1959 Baltimore consented to an election, under the supervision of the Board’s Regional Director, to ascertain whether a certain unit of its employees desired Amalgamated as its bargaining representative. The election was held June 11, 1959 and the union won. Next day Baltimore filed objections to the election, at the same time asking that it be set aside. Presently pertinent, the objections stated that:
“(1) During the period immediately prior to the election Employer supervisory personnel engaged in. organizing and other activities on behalf of the Union, by which employees were induced, coerced and caused to favor the Union, sign cards for the Union and vote for the Union, all of which was unknown to the Employer until after the election.”
The supervisory personnel to which Baltimore had reference was one Crestón E. Ford, the foreman of its lithographic department. Following an ex parte investigation, including in camera interviews with the witnesses of whom it was apprised by the employer, the Regional Director concluded that the objections should be overruled and Amalgamated certified as the exclusive representative of ‘the Baltimore employees. To this report Baltimore filed exceptions. The Board denied them without a hearing, thinking a hearing unwarranted and unsought, and accordingly certified Amalgamated.
Thereafter, Baltimore declined to bargain with the union, contending that its selection as the collective agent was invalid. At the union’s instance the Board issued a complaint accusing Baltimore of an unfair labor practice as defined in § 8(a) (5) and (1) of the Act, 29 U.S. C.A. § 158(a) (5), (1). In the hearing on this complaint before the Examiner, Baltimore proffered oral and documentary evidence purporting to delineate the activities of Ford. Quoting from the offer made before the Examiner, the evidence it tendered would show that
“He [Ford] said that he knew the company had done and would do some dirty tricks to us and told them to look at what they have done to me. Further, that Mr. Ford told employees under his supervision ‘you fellows better sign a card and send them in’ under circumstances in which it was perfectly clear that he was talking about union cards which were the only cards being circulated in the plant at the time.
“Further, that Mr. Ford told witnesses under his supervision that the plant superintendent was just a hatchet man and the men had better get together and get the union in.
“Further, that many times and immediately before the election Mr. Ford stated to employees under his supervision that the plant wasn’t a family affair any longer, that the men didn’t any longer have the security they had before and that the fellows ought to have a union to protect themselves.”
This evidence the Examiner declined to hear. He was of the opinion that as the Board had already decided the dispute in the representation proceeding, the question was no longer open. Whereupon on his recommendation the Board entered the order it now seeks to enforce.
With the respondent Baltimore, we think it should have been heard on its exceptions in the election proceeding. Indwelling, of course, was a request for a hearing upon them. The Board’s Buies and Regulations, Section 102.69, allowed such a hearing. But we need not now enlarge on the point because, in the absence of a hearing at that stage, the employer should certainly have been accorded a hearing thereon in the complaint proceedings, and we discuss the point under that head.
The Examiner and the Board clearly erred in rejecting the testimony when last offered. Ford’s activities — if true — could not be lightly brushed off. The Board has repeatedly declared, and again recognizes in its brief here, that advocacy of the union by a supervisor-employee, unknown to the employer, is cause for annulment of the election. Shovel Supply Co., 118 N.L.R.B. 315 (1957); Parkchester Machine Corp., 72 N.L.R.B. 1410 (1947); Robbins Tire & Rubber Co., 72 N.L.R.B. 157 (1947). Awareness by Baltimore of Ford’s aiding of the union is not indicated in the evidence. Entreaties and importunities of the kind here suggested were not permissible and protected — “privileged”— under 8(c) of the Act, 29 U.S.C. 158(c) as expressing only “ * * * views, argument, or opinion * * * ”. Nor would they necessarily be neutralized by the alleged oral and written attempts of Baltimore to persuade the employees against unionization. It must be remembered that Ford denied any untoward conduct on his part. Whatever the truth the employer should have had an opportunity to present its side.
Baltimore's strictures on the supervisor’s electioneering, given increased countenance by a show of proof, raised “substantial and material factual issues”. Rules and Regulations, supra, Sec. 102.69(d). Actually, the report of the Regional Director in the election proceeding itself reflects evidence of partisan remarks by Ford, particularly “that he [Ford] knew that the Company had done some dirty tricks to us, ‘look what they done to me’ ” and “the plant superintendent was just a hatchet man”.
Such words would come with particular force from Ford. He had once been a superintendent and only recently demoted. His admonitions were directed to subordinates and he talked from 37 years of experience with Baltimore. Just then the company was in a critical period, passing from a family proprietorship of 80 years to a new ownership, a transition already creative of uneasiness among the employees. Though away on vacation from May 30 until June 9 (two days before the election), it is not clear that Ford’s absence erased his earlier campaigning.
The right of the employer to the audience of the Board in these circumstances was enjoined upon the Board in N. L. R. B. v. Poinsett Lumber & Mfg. Co., 221 F.2d 121 (4 Cir. 1955) by this court with precise language, as follows:
“If a hearing had been held and the evidence had been taken and passed upon by the Board in the representation proceeding, the Board would not be required to go into the matter again in the absence of special circumstances showing that it was in the interest of justice that this be done; but the evidence has not been taken nor a hearing accorded the company at any time even though substantial questions affecting the validity of the election had unquestionably been raised by its exceptions. We think that it is entitled to a hearing at some stage of the proceedings so that it may produce the evidence upon which it relies for consideration by the Board and for consideration by this court in proceedings to enforce or set aside the Board’s order. * * * ”
Similar holdings prevail elsewhere. N. L. R. B. v. Tampa Crown Distributors Inc., 272 F.2d 470 (5 Cir. 1959); N. L. R. B. v. Dallas City Packing Co., 230 F.2d 708 (5 Cir. 1956); N. L. R. B. v. West Texas Utilities Co., 214 F.2d 732 (5 Cir. 1954).
Certification of the election did not irrevocably seal it against review. Altogether interlocutory — just a step in the enforcement proceeding — it was as a matter of law subject to vacation or revision at any time before the trial of the unfair labor practice complaint became final. Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146,162, 61 S.Ct. 908, 85 L.Ed. 1251 (1941).
The order of the Board will be set aside with a direction to hear Baltimore's evidence and arguments in objection to the election.
Order set aside and remanded.
. National Labor Relations Act, § 10(c), 29 U.S.C.A. § 160(c).
. Id., § 10(e), 29 U.S.C.A. § 160(e).
. Id., § 9(e) (1) and (2), 29 U.S.C.A. § 159(c) (1) and (2).
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_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".
HOT SPRINGS COAL CO. v. MILLER.
No. 1848.
Circuit Court of Appeals, Tenth Circuit.
Nov. 2, 1939.
Rehearing Denied Dec. 19, 1939.
Cyril W. Armstrong, of Chicago, Ill. (Charles E. Lane, of Cheyenne, Wyo., and Clarence P. Parker, of Chicago, Ill., on the brief), for appellant.
Allen A. Pearson, of Cheyenne, Wyo., for appellee.
Before LEWIS, BRATTON, and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
The McPherson Oil Company, a Delaware corporation, Hot Springs Coal Company, an Illinois corporation, and others, filed their bill of complaint against Albert C. Miller in the District Court of the United States for the District of Wyoming. The parties will be referred to herein as they appeared in the court below.
Plaintiffs in their bill of complaint sought to establish title and ownership in themselves to a coal mining lease and certain coal mining permits covering government lands in Wyoming. The bill charged that the lease and permits were issued and taken in the name of defendant, but that he was a constructive trustee and took and held them as agent and in trust for plaintiffs and that plaintiffs were the owners of the interest in such lease and such permits. Plaintiffs prayed that a court of equity decree that plaintiffs furnished the money with which defendant was able to obtain the coal permit and was enabled to operate a wagon mine on the premises, and that defendant, in procuring the coal permit and in operating the mine, acted as agent and truste'e for plaintiffs; that a trust be declared ; that plaintiffs be decreed to be the beneficial parties in interest in the coal lease; that defendant be required to assign and transfer to plaintiffs the coal lease and permit; and for an accounting.
Defendant denied that he held the lease and permit for the benefit of plaintiffs, and stated that in taking the permit and lease he was under no duty to take the same in the name of and for the benefit of plaintiffs. Defendant alleged that he offered to hold the same for the benefit of plaintiffs and their stockholders upon condition that plaintiffs furnish necessary funds to operate, develop and prove the worth of the land; that plaintiffs failed, refused and neglected to furnish the financial assistance, and by reason of such failure it was necessary for defendant to carry on the development work at his own expense; that he had developed the property at an expenditure to himself of approximately $17,000. He prayed that the bill be dismissed and his title to the property quieted, but that in the event it be determined plaintiffs had an interest in the lease and permits, they be required to reimburse him by a day to be fixed for his expenditures, with interest thereon, and that in default of such reimbursement the entire interest, title and right of possession in and to the lands covered by the lease and permit be quieted and confirmed in him. A reply was filed by plaintiffs denying the allegations of defendant’s answer and alleging that plaintiffs furnished the money with which the development had been done. The case was tried to the court and during the trial thereof a settlement was made by plaintiffs and defendant, through their attorneys, which was approved by the court.
On January 4, 1938, the court entered a decree reciting that the parties had agreed in open court that the plaintiffs McPherson Oil Company and Hot Springs Coal Company, corporations, were indebted to Albert C. Miller in the sum of $11,500; that in addition thereto defendant was the owner of $1,000 deposited with the Commissioner of the General Land Office of the United States of America in lieu of a bond; that the plaintiffs pay to defendant the sum of $11,500 on or before July 1, 1938, and that upon the payment to defendant of said sum and upon plaintiffs or either of them securing the release and refund of the $1,-000 on deposit, or in the event they failed to secure the release, then upon the payment to defendant of the additional sum of $1,000, plaintiffs shall hold all the land involved in the coal permit and the mining lease in controversy, free and clear of any and all incumbrances except any royalties or other obligations to the United States government; that upon the payment of said sums of money by plaintiffs to defendant, plaintiffs shall become vested with the title to all the property in controversy and shall, upon making said payments, be entitled to the immediate possession thereof; that in the event plaintiffs, or any or either of them, fail to pay the amount found due the defendant on or before July 1, 1938, title to the coal mining permits and lease shall be and vest automatically in defendant, Albert C. Miller, free from any claim of plaintiffs or any of them, save and except certain personal property on the premises owned by plaintiffs.
The decree further recites that the court, having heard the stipulation, finds that it is just and proper and should be approved. The decree contained appropriate provisions to make effective the provisions of the agreement. The court in its decree reserved jurisdiction of the cause for the purpose of making any future orders as might be required.
On June 30, 1938, plaintiffs filed a motion asking that the decree be set aside, for the reason that plaintiffs’ attorneys did not have authority to make or enter into the settlement; that the real estate involved in the permit constitutes the major portion of the assets of the Hot Springs Coal Com.pany. By amendment to the motion further grounds were urged for vacation of the decree, namely, that the agreement violated the statutes of Illinois which require that a corporation cannot dispose of all its assets without complying with certain statutory requirements relating to the sale of the assets of a corporation.
This motion was heard by the court and on the 29th day of August, 1938, defendant filed his motion stating that plaintiffs had failed or refused to make the payments or any part of them provided for in the’ agreement incorporated in the decree of the court; that the time for payment had expired, and prayed for a final decree, quieting title to the property in controversy in defendant and against plaintiffs. On the 29th day of August, 1938, a final decree was entered by the court quieting the title of defendant in and to the lease and permits and barring plaintiffs from any right, title or interest in them. The notice of appeal recites that the appeal is taken from the decree of January 4, 1938, the order denying the motion to vacate and set aside the same, and the final decree of August 29, 1938.
The grounds urged for consideration for reversal of the decree are: 1st, That the attorneys representing plaintiffs did not have authority to make and enter the agreement; 2nd, That the decree is void because contrary to the Illinois statute prohibiting a corporation from selling and disposing of all of its assets without complying with certain statutory requirements; 3rd, That the court was without authority to make an alternative or conditional decree.
In its motion to vacate the judgment, plaintiffs contend that the attorneys for plaintiffs did not have authority to make and enter the agreement that was made. Plaintiffs were represented by two attorneys, Charles E. Lane of Wyoming, and Jacob Brisgall of Chicago, Illinois. The evidence establishes that after negotiations for a settlement had been completed, Mr. Brisgall called the president of the 'Hot Springs Coal Company and advised him of the proposed settlement. He did not inform him that in the event of plaintiffs’ failure to pay the $12,500, title to the property in controversy would be quieted in defendant. The president was informed of all other terms of the proposed settlement. Being informed of the terms of the proposed agreement, the president said, “All right, do the best you can.” There was. no testimony that the powers of Charles E. Lane were other than those of a general attorney. No evidence was offered tending to show that his authority was limited in any way. In the absence of an affirmative showing to the contrary, it is presumed that an attorney has authority to compromise and settle a case. Freeman, Judgments, 5th Ed., § 1346; 6 C.J., page 645, § 150; Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877, 66 A.L.R. 102, 106; East Line & R. River Ry. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 13 Am.St.Rep. 758; United States v. Beebe, 180 U.S. 343, loc. cit. 352, 2 S.Ct. 371, 45 L.Ed. 563.
It is, however, not necessary to determine whether plaintiffs’ attorneys had authority to make the settlement. All the proposed terms of the settlement were communicated to plaintiffs. They accepted and ratified the proposed settlement and attempted to carry it out. As has been stated, the decree of the court gave plaintiffs six months within which to pay defendant the $12,500 due him. On June' 6, 1938, the president of the Hot Springs Coal Company addressed letters to all of the stockholders of the company reciting the terms of the proposed settlement. This letter recited .the appearance of Brisgall and Lane in the litigation. It stated the provisions of the decree of the court requiring the payment to defendant of, $12,-500 by July 1, and that if such payment was not made by that time the mine would revert to defendant. The letter states that the delay in informing the stockholders was due to the protracted meetings of the Board of Directors to find ways and means to raise this sum and recites the failure of the officers to accomplish this. The letter then appealed to the stockholders for suggestions as to what could be done.
From this letter it is evident that the officers of plaintiff company had full knowledge of the settlement and of provisions of the decree providing for the quieting of the title in defendant if these payments were not made by July 1. Aside from any other evidence, this letter shows that plaintiffs were fully informed of the provisions of the settlement, ratified and accepted it and attempted to carry it out. As late as the date of this letter, no suggestion appears anywhere that the settlement was unauthorized or that it should be repudiated for want of authority to consummate it.
It was only on June 30, the last day for the payment of the $12,500, that plaintiffs attempted to set the decree aside for want of authority on the part of its attorneys to make the settlement. Conced-, ing for the purpose of this opinion, without so deciding, that plaintiffs’ attorneys were not authorized to make the settlement, it must be found that plaintiffs confirmed and ratified the settlement and are estopped to challenge the same.
It is further urged that the decree of the court is void because contrary to an Illinois statute (Smith-Hurd Ill.Rev.Stat. 1935, c. 32, § 157.72) which prohibits a corporation from disposing of all of its assets without complying with certain statutory requirements. Such a statute can relate only to voluntary disposals and sales of property standing in the name of a corporation and admittedly the property of the corporation. In this case the corporation claimed to be the owner of this property. It did not stand in the name 'of the corporation. At best, all that it had was an equitable interest in the property.’ It filed its petition in a court of equity, claiming to be the owner of the property by virtue of a trust, and praying the court "to determine its ownership and to quiet its title. Whether it was the owner of this property or not was the issue to be determined in the litigation. What, if any, interest it had in the property and the conditions and terms upon which it was the owner of any interest in the property was for the determination of a court of equity. The decree of the court in no wise constituted a sale or exchange of property belonging to plaintiffs within the purview of the Illinois statute. Fletcher on Corporations, vol. 6, page 1038; In re Norcor Mfg. Co. (Schmitt v. De Laney, et al.), 7 Cir., 97 F.2d 208; Baldwin et al. v. American Trading Co., 76 Cal.App. 80, 243 P. 710.
It is true, as contended by plaintiffs, that the trial court had power to vacate the consent decree and that the decree of the court entered January 4 was not a final decree. The difficulty in which plaintiffs find themselves is that they appealed to the court to vacate this conditional decree and set it aside. The court refused to do this, confirming its decree, and upon failure of plaintiffs to comply with the terms of the decree, entered a final decree quieting title of defendant to the property.
Any disposition of a pending action, not illegal, may be fairly agreed to by the parties, and if approved by the court, it should permit such disposition and enter judgment accordingly, and such judgment will be valid and binding upon the parties and their privies. 34 C.J., page 130, § 332; United States v. Parker, 120 U.S. 89, 7 S.Ct. 454, 30 L.Ed. 601; Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10, 27 L.Ed. 359; Harniska v. Dolph, 9 Cir., 133 F. 158; Simmons v. Baynard, C.C., 30 F. 532.
There is no dispute in this case as to the origin of the transaction leading to this controversy. Defendant went to Wyoming as the agent of plaintiff McPherson Oil Company, to supervise the completion of an oil well which that company was drilling. McPherson Oil Company also had some coal properties in that vicinity. After the completion of the oil' well, defendant prospected and explored adjoining coal lands and discovered a valuable vein of coal. Defendant made application for a lease and mining permits in his own name. It was ultimately agreed that plaintiffs should furnish the money and assets with which to do the development work on this mine and if it did so the defendant would hold this property as trustee for plaintiffs. Defendant contends that plaintiffs failed in any substantial way to carry out this agreement and by reason thereof he was compelled to expend a large amount of his own funds in the development of this property, amounting to at least $17,-000. Plaintiffs deny this. These were the issues to be determined by the court of equity in the pending litigation. The parties themselves arrived at an agreement by which it was agreed that plaintiffs owed defendant $12,500 for money advanced by him in the development of these properties. They agreed that before plaintiffs should have any interest in the property they should repay to defendant this sum of money, and if they did, the property was to be conveyed to the Hot Springs Coal Company for the benefit of all; if not, the title to the property was to be quieted in defendant, whose efforts and whose money up to this point made possible the develop;ment of the property. Plaintiffs agreed to this and attempted to raise the money with which to pay defendant. They wholly failed to do so. It was only on the last day before their right to any interest in the property expired under the agreement confirmed by the decree of the court that they advanced the contention that their attorneys had no authority to negotiate the settlement.
The settlement agreement was arrived at in open court. Plaintiffs were fully informed concerning all the terms of this settlement and attempted to carry it out. It was submitted to the court for -its • approval, which approval was within the equitable powers of the court to grant if it found the agreement equitable. This the court did.
A court of equity is empowered to make the provisions contained in the decree of the court in furtherance of justice between the parties. Broatch et al. v. Boysen et al., 8 Cir., 236 F. 516; Uehling v. Lyon et al., C.C., 134 F. 703; Soderberg et al. v. McRae et al., 70 Wash. 235, 126 P. 538; Robles v. Clarke, 25 Cal. 317; Stewart v. Ganley, 11 Colo. 458, 18 P. 619.
The decree of the trial court is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America ex rel., Glenn SLEIGHTER, Appellant, v. William J. BANMILLER, Supt., Eastern State Penitentiary, Philadelphia, Pennsylvania.
No. 12275.
United States Court of Appeals Third Circuit.
Submitted Dec. 6, 1957.
Decided Dec. 17, 1957.
Glenn Sleighter, pro se.
George C. Eppinger, Chambersburg, Pa., for appellee.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
In the absence of an opinion by the district court, it is impossible for us to determine the basis of that court's decision in its denial of appellant’s petition for a writ of habeas corpus and to properly consider and pass upon the merits of
this appeal. Cf. United States ex rel. De-Vita v. McCorkle, 3 Cir., 1954, 216 F.2d 743.
The order of the district court will be vacated and the cause remanded for further proceedings in accordance with this opinion.
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_r_stid
|
06
|
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.
Douglas James SCANLON, Plaintiff-Appellant, v. ATASCADERO STATE HOSPITAL and California Department of Mental Health, Defendants-Appellees.
No. 80-5201.
United States Court of Appeals, Ninth Circuit.
Argued Sept. 15, 1981.
Submitted Oct. 15, 1981.
Decided May 24, 1982,
677 F.2d 1271.
Certiorari Granted; Vacated and Remanded March 19, 1984.
S.C. No. 82-5812,
104 S.Ct. 1583, 80 L.Ed.2d 117.
Decided June 13, 1984.
Marilyn Holle, Western Law Center for the Handicapped, Los Angeles, Cal., for plaintiff-appellant.
James E. Ryan, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees; Prudence Kay Poppink, Employment Law Center, San Francisco, Cal., on brief.
Before DUNIWAY and FERGUSON, Circuit Judges and KELLAM, District Judge.
The Honorable Richard B. Kellam, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
DUNIWAY, Circuit Judge:
We consider for the second time Scan-lon’s claim of employment discrimination against the handicapped under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court dismissed the action on the ground of state immunity under the Eleventh Amendment. We reverse.
I. BACKGROUND.
Scanlon alleged that he suffers from diabetes mellitus and lack of vision in one eye, that California’s Atascadero State Hospital denied him a job as a graduate student assistant, and that this was discrimination in employment violating the Act. The state received federal financial assistance for the hospital under the Act. The defendants moved to dismiss on two grounds: (1) that § 794 does not apply to employment discrimination unless a primary objective of the federal financial assistance is to provide employment, and (2) that the Eleventh Amendment barred Scanlon’s federal claim. The district court dismissed on the Eleventh Amendment ground. We affirmed the dismissal, but on the ground that there can be no private claim for relief under § 794 unless a primary objective of the federal financial assistance is to provide employment. Scanlon v. Atascadero State Hospital, 9 Cir., 1982, 677 F.2d 1271, 1272. The Supreme Court, — U.S. -, 104 S.Ct. 1583, 80 L.Ed.2d 117, granted certiorari, vacated our judgment, and remanded for further consideration in the light of Consolidated Rail Corporation v. Darrone, 1984, — U.S. -, 104 S.Ct. 1248, 79 L.Ed.2d 568. Scanlon v. Atascadero State Hospital, 1984, — U.S. -, 104 S.Ct. 1583, 80 L.Ed.2d 117. Consolidated Rail is squarely in point on the § 794 question, and is contrary to our previous opinion.
We did not reach the Eleventh Amendment question in our opinion, 677 F.2d at 1272, but must do so now. Consolidated Rail did not touch on the issue of state immunity. No state or state agency was a defendant there.
II. STATE IMMUNITY UNDER THE ELEVENTH AMENDMENT.
Section 794 of the Rehabilitation Act broadly bars “discrimination under any program or activity receiving federal financial assistance ...” and § 794a(a)(2) provides remedies, procedures, and rights against “any recipient of Federal assistance____” The Act contains extensive provisions under which states are the express intended recipients of federal assistance. E.g., § 720 et seq. Accord 45 C.F.R. § 84.3(f) (implementing regulations broadly define “recipient” to include “any state or its political subdivision”). If states receive federal assistance under the statute, they plainly fall within the defined class of potential defendants.
The Eleventh Amendment of the United States Constitution broadly bars federal court actions by private parties, including actions by parties who are citizens of the state, against states and state agencies. See generally Pennhurst State School and Hospital v. Halderman, 1984, — U.S. -, ---, 104 S.Ct. 900, 906-08, 79 L.Ed.2d 67 (1984).
Section 5 of the Fourteenth Amendment gives Congress “power to enforce [its provisions] by appropriate legislation.” The question is whether Congress has done so in the Act that we are considering, where consent of the state can be inferred. We conclude that it has.
This is not a case in which the Act expressly provides for state liability, as some statutes do. See, e.g., Fitzpatrick v. Bitzer, 1976, 427 U.S. 445, 447, 96 S.Ct. 2666, 2667, 49 L.Ed.2d 614. Nor is this a case in which the legislative history makes it clear that Congress intended to make states liable, regardless of their consent. See, e.g., Hutto v. Finney, 1978, 437 U.S. 678, 693—94, 98 S.Ct. 2565, 2574-75, 57 L.Ed.2d 522.
Rather, this is a case in which a “congressional enactment ... by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumen-talities,” and “the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.” Edelman v. Jordan, 1974, 415 U.S. 651, 672, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662. Edelman was not such a case because “the threshold fact of congressional authorization to sue a class of defendants which literally includes states [was] wholly absent.” Id.
Other decisions of the Supreme Court apply the principle. Petty v. Tennessee-Missouri Bridge Commission, 1959, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804, was an action under the Jones Act, 46 U.S.C. § 688 et seq., which authorized personal injury actions by any seaman against his employer. Id. § 688. The states operated ferryboats under a compact to which Congress consented with a proviso that, the Court held, created a waiver of Eleventh Amendment immunity. In Parden v. Terminal Railway of the Alabama State Docks Department, 1964, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233, the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., provided that “Every common carrier by railroad ... shall be liable in dam-ages____” Id. § 51 (emphasis added). Under this broad statutory definition of potential defendants, a state’s subsequent voluntary operation of a railroad constituted consent to suit.
We have recently decided two cases in which we applied the same principle. In Mills Music, Inc. v. State of Arizona, 9 Cir., 1979, 591 F.2d 1278, 1283-85, the federal statute, the old Copyright Act, former 17 U.S.C. § 1 et seq., provided broadly that “any person ... shall be liable____” Id. § 101 (emphasis added) (compare present 17 U.S.C. § 50(a): “Anyone who violates ...”). We held that the state agency, by using a copyrighted song to promote a state fair, voluntarily engaged in regulated activity and thus waived its Eleventh Amendment immunity. In Department of Education, State of Hawaii v. Katherine D., 9 Cir., 1984, 727 F.2d 809, 818-19, the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq., a statute often associated with the Rehabilitation Act, provided a broad private right of action, id. § 1415(e)(2), in a context where state agencies would “inevitably” be parties to any dispute. We held that the state agency, by applying for and receiving federal funds under id. § 1412, waived its Eleventh Amendment immunity and consented to suit.
Scanlon, expressly alleged that Atascade-ro State Hospital is a recipient of federal financial assistance under the Rehabilitation Act, see Complaint 114 [ER 3], and in reviewing the dismissal of his action we must assume this to be the case.
We decline to follow cases holding that the Eleventh Amendment bars actions against states under § 794, such as Ciam-pa v. Massachusetts Rehabilitation Commission, 1 Cir., 1983, 718 F.2d 1, 3-4, and Miener v. State of Missouri, 8 Cir., 1982, 673 F.2d 969, 979-980-82. We disagree with those cases’ reliance on Edelman and Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Association, 1981, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132, in holding that state acceptance of Rehabilitation Act funds does not waive Eleventh Amendment immunity with respect to suit under § 794. As we have seen (p. 361) supra, Edelman itself distinguishes a case like this one. 415 U.S. at 672, 94 S.Ct. at 1360. Florida Dep't of Health is similar to Edelman. 450 U.S. at 150, 101 S.Ct. at 1034. In this case, there is more than the “mere fact” of state participation and, as we have shown, a different standard of waiver applies. See Katherine D., 727 F.2d at 819.
We conclude that the Eleventh Amendment does not bar Scanlon’s action because the state, if it has participated in and received funds from programs under the Rehabilitation Act, has implicitly consented to be sued as a recipient under 29 U.S.C. § 794.
The judgment is reversed and the action is remanded to the trial court for further proceedings consistent with this opinion.
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_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
PAGE, Internal Revenue Collector, v. LAFAYETTE WORSTED CO.
No. 2752.
Circuit Court of Appeals, First Circuit.
June 15, 1933.
Rehearing Denied July 26, 1933.
MORTON, Circuit Judge, dissenting.
Charles K. Hoover and Frank J. Ready, Jr., Sp. Attys., Bureau of Internal Revenue, both of Washington, D. C. (Henry M. Boss, Jr., U. S. Atty., of Providence, R. I., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for appellant.
Laurence Arnold Tanzer, of New York City (Francis J. O’Brien, of Providence, R. I., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
The Lafayette Worsted Company brought an action at law in the United States District Court for the District of Rhode Island against Frank A. Page, collector of internal revenue in that district, to recover taxes it claims were illegally assessed and collected. Jury trial was waived, and the case was tried before the District Judge. He entered judgment in favor of the plaintiff for $202,888.-20, with interest from January 19, 1926, and 'the defendant appealed.
The taxes in question are the meóme and excess profits taxes for the years 1918 and 1919. For 1918 the plaintiff’s return showed a tax liability of $811,443.94, which was paid in due course. Upon a reaudit in 1922, the Commissioner determined that the correct tax for 1918 was $801,261.06, and the difference was refunded. For the year 1919 the plaintiff’s return showed a tax liability of $586,-512.98, which was duly paid. Upon a reaudit in 1923 this amount was found to be too large by $4,378.68, and the excess was refunded.
In March, 1923, the plaintiff applied to the Commissioner for a special assessment of its taxes for the years in question under the provisions of sections 327 and 328 of the Revenue Act of 1918 (40 Stat. 1093). This application was granted by the Commissioner. The taxes for both years were accordingly redetermined upon a special assessment, so called. As a result of this special assessment, the Commissioner determined that the plaintiff had been overassessed $81,770.97 for the year 1918, and $86,021.56 for the year 1919. Those amounts were in due course refunded to the plaintiff.
In March, 1924, the Commissioner advised the plaintiff that his determination as to over-assessments for the years 1918 and 1919 was erroneous. Jeopardy assessments of the amounts previously refunded, plus interest and certain penalties, were made forthwith, followed shortly by notice and demand for payment. Litigation followed by which the plaintiff endeavored to prevent the collection of the jeopardy assessments. The plaintiff failed in the litigation; and in January, 1926, it paid the disputed assessments, in the amount of $81,770.97, with interest amounting to $13,014.27, and a penalty amounting to $4,088.55 for the year 1918,- and in the amount of $86^021.56, with interest amounting to $13,691.77 and a penalty of $4,301.08 for the year 1919. The total payments came to $202,888.20, which is the amount sought to be recovered in the present aetion. All payments were made under protest. The plaintiff has complied with all formalities required by law for the maintenance of this aetion.
The ease was tried on a stipulation of facts agreed to by both parties, with the right to introduce further evidence not inconsistent with the facts stipulated. The stipulation clearly covered all the facts relating to the assessment of the taxes for the two years in question, the amounts, and the refunds, and in addition certain correspondence between the Commissioner and the taxpayer relating to the reauditing of the tax, the allowance of the overassessments, and the re-examination of the. taxpayer’s application for reassessment of the taxes for the years under sections 327 and 328 of the 1918 act, and the jeopardy assessment. A deposition of the xYssistant Commissioner of Internal Revenue with certain exhibits thereto attached was offered by the plaintiff as bearing' on the grounds on which the Commissioner reopened the case and reversed his previous findings that there was an overassessment for the two years in question.
The District Court first excluded both the deposition and exhibits on the ground that it disclosed facts with reference to the business of other taxpayers engaged in similar business which should not, as a matter of public policy, be disclosed, and, in addition, was irrelevant to the issues in the case, apparently on the erroneous ground that the burden was on the Commissioner to prove on what grounds he based his jeopardy assessments. Austin Co. v. Commissioner (C. C. A.) 35 F.(2d) 910. Before the case was closed, however, he admitted the exhibits. The deposition was offered and marked and “left with the clerk for any subsequent use which may be made of it by the parties,” but was not admitted.
The bill of exceptions, it is true, does not state that it includes all the evidence bearing on the issue presented by the defendant’s exception; but from the bill of exceptions it clearly appears that the stipulation of facts, with the correspondence referred to, and the exhibits attached to the deposition, constitute all the evidence introduced at the hearing before the District Court, and on which the judge based his judgment. Since the record contains all the evidence on which the District Court based its judgment, the omission to so state in the bill of exceptions does not prevent the appellate court from considering the issue raised by a motion for a judgment for either party; exceptions being taken before judgment to the refusal to grant the motion. Board of Com’rs of Gunnison County v. Rollins, 173 U. S. 255, 19 S. Ct. 390, 43 L. Ed. 689; Crowe v. Trickey, 204 U. S. 241, 27 S. Ct. 275, 51 L. Ed. 454; St. Louis v. Western Union Tel. Co., 148 U. S. 92, 96, 13 S. Ct. 485, 37 L. Ed. 380.
While the motion for judgment by the defendant was not in the usual form, as it assigned as a reason that the plaintiff had not sustained the burden of proof that the taxes of the plaintiff have been overpaid, and that the taxes involved were erroneously assessed and collected, we think it raises an issue of law, if there was no substantial evidence to support a judgment for the plaintiff, or upon the facts stipulated and the evidence no other conclusion could be reached than that the defendant was entitled to judgment. While on a general finding of facts no issue of law is raised by exception to the judgment, Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113, a motion before judgment that judgment he entered for the defendant and refused and exception taken at the time, raises a question of law. Fleischmann Cons. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Maryland Casualty Co. v. Jones, 279 U. S. 792, 795, 796, 49 S. Ct. 484, 73 L. Ed. 960; St. Louis v. Western Union Tel. Co. supra; United States v. Smith (C. C. A.) 39 F.(2d) 851, 855.
The issue raised by the ruling' and exception hero is whether the Commissioner had authority, no fraud by the taxpayer being claimed, or mistake of fact being shown, to change an assessment once made and a refund paid, if done within the period of limitation for the assessment of taxes for the year in question.
The case of Woodworth v. Kales (C. C. A.) 26 F.(2d) 178, is cited as authority to the effect that, without fraud being shown, or mistake of law or in calculation, a Commissioner has no authority on the same state of facts to change an assessment once made and a refund paid. But in that ease the question was as to the value of securities in 3 913, and the change was made, not by the Commissioner who made the first valuation, but by a successor. Sections 1312 and 1313 of the Revenue Act of 1921 (42 Stat. 313), and sections 1006 and 1007 of the Revenue Act of 3924 (26 USCA § 1249 note, and § 1250), would have disposed of the ease without further consideration. The reasoning of the able judge, therefore, has not the weight it might have if it were alone decisive of the ease.
However, later. decisions of the Circuit Courts of Appeals, in the case of Austin Co. v. Commissioner, supra, and Oak Worsted Mills v. United States (Ct. Cl.) 36 F.(2d) 529, Id. (Ct. Cl.) 38 F.(2d) 699, and especially McIlhenny v. Commissioner (C. C. A.) 39 39. F.(2d) 356, 357, which was approved by the Supreme Court in Burnet v. Porter, 283 U. S. 230, 51 S. Cf. 416, 75 L. Ed. 996, establish a contrary rule to that laid down in the Woodworth Case, and governs this ease.
In the Mellhenny Case the court said: “But the sole question presented by the record before ns is not whether the first action of the Commissioner in allowing the deduction was right or wrong, hut whether having once determined the matter, and the tax computed upon such determination hav-
ing been paid, tbe Commissioner had power or authority, in the absence of fraud or other new evidence, to reopen the case, disallow the deduction theretofore allowed by him, and make a redetermination of the tax. In support of their contention that the Commissioner was without power to reopen the ease and make a redetermination, the petitioners, the taxpayer’s executors, rely upon Woodworth v. Kales (C. C. A. 6) 26 F.(2d) 178, and the Commissioner’s order of January 20, 1923, while the Commissioner finds support for his opposite view in Botany Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379; L. Loewy & Son v. Commissioner of Internal Revenue (C. C. A. 2) 31 F.(2d) 652; Holmquist v. Blair (C. C. A. 8) 35 F.(2d) 10; Austin Co. v. Commissioner of Internal Revenue (C. C. A. 6) 35 F.(2d) 910; sections 1312 and 1313 of the Revenue Act of 1921, 42 Stat. 227; and sections 1006 and 1007 of the Revenue Act of 1924, 43 Stat. 253 (26 USCA §§ 1249 note, 1250).. * * *
“In the ease at bar, the statutory procedure was not followed, in that there was no agreement in writing, or otherwise, that the determination and assessment of February, 1924, should be final and conclusive. As a consequence, we axe constrained to hold that the determination and assessment of 1924 were not final and conclusive, ánd that the Commissioner was not estopped or otherwise barred, by the payment and acceptance of the tax based on such determination and assessment, from reopening the case and making the further determination subsequently made by him.”
In passing on the conclusion of the Circuit Court of Appeals in the McIlhenny Case, the Supreme Court in the case of Burnet v. Porter said: “The Court of Appeals sustained the power of the Commissioner upon the authority of McIlhenny v. Commissioner of Internal Revenue [C. C. A.] 39 F.(2d) 356; and was clearly right in doing so.”
We think there was no evidence in the ease at bar to sustain the ruling of the District Court. The judgment is contrary to the law laid down in the McIlhenny Case. It may be noted in passing, too, that - the fact that a penalty was imposed in making the jeopardy assessments indicates that the Commissioner, on re-examination, must have had evidence of some irregularity on the part of the taxpayer.
The judgment of the District Court is reversed, and the ease is remanded to that court, with instructions to order a judgment for the defendant.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_timely
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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".
Alfred JOHNSON and Robert J. Jensen, Appellants, v. Lester R. NELSON, L. Boerebach, C. H. Bunkholt, Gunnar Peterson, E. H. Everetts, Ralph Hallberg, Harry Burns and Vern Thomay, Appellees.
No. 17298.
United States Court of Appeals Eighth Circuit.
Dec. 31, 1963.
Herbert S. Thatcher, Washington, D. C., for appellants; Francis X. Helgeson, Minneapolis, Minn., with him on the brief.
James C. O’Neill, St. Paul, Minn., for appellees; Bundlie, Kelley & Torrison, St. Paul, Minn., with him on the brief.
Before VOGEL, MATTHES and MEHAFFY, Circuit Judges.
MATTHES, Circuit Judge.
This action was instituted by eight members (appellees) of Local No. 386 (Local) of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, against Alfred Johnson and Robert J. Jensen (appellants), Local’s president and treasurer, respectively, under Title V — § 501(a) and (b) of the Labor-Management Reporting and Disclosure Act, (LMRDA) of 1959, 29 U.S. C.A. § 501(a) and (b) (commonly referred to as the Landrum-Griffin Act). In brief, the complaint alleged that appellants as officers of Local, occupied positions of trust and that their refusal to sign checks in payment of certain attorneys’ fees and other expenses which had been approved by the membership of Local, constituted a violation of their fiduciary obligations.
After a trial, the court, Judge Larson, found the issues for appellees and entered a judgment directing appellants to “prepare, execute, and deliver, forthwith, cheeks in full payment of the duly approved bills reimbursing Petitioners [appellees] for their attorneys’ fees and related expenses. * * * ” Appellants duly appealed from the judgment so entered.
The facts are uncontroverted, and inasmuch as they are exhaustively detailed in the trial court’s findings, D.C., 212 F.Supp. 233, 236-240 (1963), it is neither necessary nor desirable that we indulge in another complete recital of them. A concise résumé will suffice.
Local has approximately 2200 members. Under the constitution of the International Union, seven members in good standing constitute a quorum for a meeting. Bills for expenses incurred must be approved first by the trustees and then by the membership of Local before payment. The president and treasurer are required to sign checks in payment of approved bills.
Strong differences of opinion existed within Local regarding wage negotiations being conducted by incumbent officers; appellees and certain other members manifested their intention to present a slate of candidates to oppose appellants and other incumbent officers; at the nomination meeting, before appellees had nominated their opposition candidates, charges alleging violation of various union principles were preferred against appellees and others (most were opposition candidates) by one Carlson, the incumbent business agent of Local; a union trial was conducted by a Trial Board of which appellant Johnson was chairman. After three accused members were properly tried and acquitted, different trial procedures- — in violation of the union constitution — were adopted by the Trial Board, and the accused members were presumed to be guilty instead of innocent of the charges. Under the new procedures, the remaining accused members were tried, found guilty, and either fined or suspended. On appeal, despite obvious violations of the rights of appellees, the International Union affirmed the “unlawful” action of the Local Trial Board.
Appellees instituted an action in the United States District Court for the District of Minnesota, charging appellants and others with violation of Title I — § 101(a) (2) and (5) of LMRDA, 29 U.S.C.A. § 411(a) (2) and (5), and seeking to set aside the improper disciplinary action. After the court (Judge Devitt) granted a temporary injunction, the parties entered into a stipulation approved by the court whereby the decisions of the Local Trial Board and the penalties, imposed by that tribunal were set aside and withdrawn.
Appellees incurred attorneys’ fees in the amount of $3,475 in the federal court action and costs in the amount of $262.44 in the first union trials.
At a meeting the membership of Local approved payment of appellees’ attorneys’ fees incurred in the federal court action, but at a subsequent meeting rescinded this action.
In May, 1961, Carlson filed new charges against “various Petitioners [appellees] and other members.” Pursuant to the stipulation between the parties in the federal court case, the membership of Local elected a Special Trial Board to hear these charges. Appellee Nelson was the first accused to be tried. After trial but before the Special Trial Board had reported its decision to the membership, a representative of the International Union recommended a settlement of all issues to the Special Trial Board, including the payment of all attorneys’ fees and expenses for both groups.
Thereafter, the Special Trial Board dismissed the charges against appellee Nelson and recommended that the attorneys’ fees and expenses incurred by all parties in the two series of union trials and in the first federal court action be paid by Local. The membership of Local approved the recommendation of the Board. However, on August 18, 1961, in response to a letter from acting Local treasurer Romine, the General President of Internati final suggested that payment of attorneys’ fees incurred by appellees be deferred until investigation had been made. During a union meeting on August 21, 1961, appellant Johnson unsuccessfully attempted to rescind the prior approval by Local of the Special Board’s recommendation. Johnson then submitted to the membership the vouchers of appellees, item by item, for attorneys’ fees and other expenses incurred in the federal court action, and the membership approved each item.
On September 4, 1961, Johnson by letter requested an order from the International President directing Johnson not to pay the questioned bills. On September 6 and September 13, the officers of Local by unanimous vote (appellants abstaining) directed appellants to pay the bills. Appellants persisted in their refusal to do so.
On September 29, 1961, Romine and appellants were advised by the General President of International that investigation had been completed and that “in our opinion” appellees’ bills and expenses were “individual indebtedness of these members” and should not be paid by Local. Appellees were not contacted during this “investigation”. The letter further advised that there was no objection to payment of attorneys’ fees for the union trials.
At a meeting of Local on October 2, 1961, appellees’ attorneys requested Local’s officers, pursuant to Title V — § 501 (b) of the LMRDA, 29 U.S.C.A. § 501 (b), to take corrective or remedial action against appellants, or else appellees would themselves commence action. Appellants advised appellees to proceed, and this action was instituted on October 16,1961.
On November 15, 1961, the General Executive Board (GEB) of International unilaterally, on its own motion, determined that the action-of Local in approving the recommendations of the Trial Board respecting payment of appellees’ bills was null and ineffective. The GEB suggested that the membership of Local reconsider its authorization of reimbursement "for the reasons: (1) that it.is against the general policy of the Brotherhood to sanction expenditure of local union funds for such purposes and, (2) the expenditure of such funds for such purposes might well constitute a violation of Title V of the Landrum-Griffin Act.” The GEB further advised that if the Local nevertheless decided to conduct a vote on the question, the Local should take such vote by secret ballot referendum vote of the entire membership by mail. No union constitutional provisions were cited as authority for the determinations made by the GEB.
There are two basic questions presented for our consideration and determination. (1) the scope of Title V — § 501 of the Act, 29 U.S.C.A. § 501; (2) whether the conduct of appellants constitutes a violation of their fiduciary responsibilities and duties under Title V — § 501.
In summary, appellants’ position as to question (1) is that Title V of the Landrum-Griffin Act was designed to apply to situations where the action or non-aetion of union officials results in some pecuniary loss or disallowance to the membership as a group, and that the trust relationship imposed by Title V relates to financial or money-related responsibilities rather than to a broad “trustee” responsibility in regard to all activities and relationships between the officers of a union and the membership.
Careful analysis of Title V refutes the notion that the statute is narrow in its terms and scope and that it is limited solely to pecuniary responsibilities or the proper or improper use of union funds.
In explicit language, § 501(a) provides that officers and other representatives of a labor organization “occupy positions of trust in relation to such organization and its members as a group.” It is the duty of each such person, “taking into account the special problems and functions of a labor organization,” not only to hold its money and property solely for the benefit of the organization and its members, but to “refrain from dealing with such organization as an adverse party * * * in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization.”
Thus it plainly appears that the statute is broad in its reach. Officers and other union representatives may not act adversely to their organization or to the members as a group, or acquire a personal interest which is contrary to the interests of the organization. Being trustees the officers must subvert their own personal interests to the lawful mandates and orders of the organization.
The legislative history of the Act demonstrates that Congress intended that it should not be interpreted by the courts narrowly or strictly, but, to the contrary, that its confines are broad. Such history was painstakingly reviewed by Judge Larson in his opinion below, and appears in full, in two volumes published by the N.L.R.B. entitled “Legislative History of the Labor-Management Reporting and Disclosure Act of 1959.” See also United States Code Congressional and Administrative News, 86 Cong. 1 Sess., 1959, Vol. 2, pp. 2318-2514. For purposes of this opinion, it is sufficient to give attention to that portion of H.Rep. No. 741 on H.R. 8342 appearing in Vol. 1, Legis.Hist. of LMRDÁ, p. 839, and in United States Code Congressional and Administrative News, 86 Cong. 1 Sess., 1959, Vol. 2, pp. 2479-2480. Before so doing, we note, as did Judge Larson in detail, 212 F.Supp. at 285, that H.Rep. No. 741 on H.R. 8342 — known as the Elliott Bill — contained fiduciary provisions identical with those which became § 501(a) of the Landrum-Griffin Act.
The report in pertinent part provides:
“Union officials occupy positions of trust. They hold property of the union and manage its affairs on behalf of the members. It is the duty of union officers just as it is the duty of all similar trustees to put their obligations to the union and its members ahead of any personal interest.
****»-»
“We affirm that the committee bill is broader and sti’onger than the provisions of S. 1555 which relate to fiduciary responsibilities. S. 1555 applied the fiduciary principle to union officials only in their handling of ‘money or other property’ (see S. 1555, sec. 610), apparently leaving other questions to the common law of the several States. Although the common law covers the matter, we considered it important to write the fiduciary principle explicitly into Federal labor legislation. Accordingly the committee bill extends the fiduciary principle to all the activities of union officials and other union agents or representatives.” (Emphasis supplied).
The courts have with consistency refused to accede to the contention that § 501 is designed for the single purpose of establishing responsibility on the part of officers and other representatives in relation to the handling and managing of fiscal matters of the labor organization. Quite to the contrary, indication is clearly present in the reported cases that § 501 should receive a broad and liberal interpretation and application.
In Highway Truck Drivers and Helpers Local 107 v. Cohen, E.D.Pa., 182 F.Supp. 608 (1960), aff’d 284 F.2d 162 (3 Cir. 1960), cert. denied, 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744 (1961), the court made this pronouncement:
“Section 501, with which we are particularly concerned, is entitled ‘Fiduciary responsibility of officers of labor organizations.’ This section, quoted earlier, attempts to define in the broadest terms possible the duty which the new federal law imposes upon a union official. Congress made no attempt to ‘codify’ the law in this area. It appears evident to us that they intended the federal courts to fashion a new federal labor law in this area, in much the same way that the federal courts have fashioned a new substantive law of collective bargaining contracts under § 301(a) of the Taft-Hartley Act, 29 U.S.C.A. § 185(a). See Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972.” 182 F.Supp. at 617.
In Moschetta v. Cross, D.D.C., 48 LR RM 2669 (July, 1961), the court held that the right of the membership to a special convention had accrued and that the failure and refusal of the executive board and of the international officers to complete arrangements for and call a special convention was not authorized by the union constitution and constituted a breach of fiduciary duty under § 501. The court cited with approval Crocker v. Weil, 227 Or. 260, 361 P.2d 1014, 48 LRRM 2177 (1961). Compare also Holdeman v. Sheldon, S.D.N.Y., 204 F.Supp. 890 (1962), aff’d, 311 F.2d 2 (2 Cir. 1962).
In summary, we hold that § 501 imposes fiduciary responsibility in its broadest application and is not confined in its scope to union officials only in their handling of money and property affairs.
Appellants’ second contention — that even if Title V imposes a fiduciary responsibility in the broadest sense, the action complained of would not constitute a violation of such responsibility — has given rise to certain misapprehensions that are in need of clarification. Appellants have seemingly misconstrued the true nature of this action, have diverted attention away from themselves as local officers, have attempted to focus upon the directive of the International General Executive Board reinforcing appellants’ action, and have stated the issues in terms of a mere ministerial policy determination controversy between the International and the Local union members —thereby attempting to bring the case within the dictates of Parks v. International Brotherhood of Electrical Workers, 4 Cir., 314 F.2d 886 (1963), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). Appellants assert that:
“the policy directive of the General Executive Board — found by the court below to be the basis for its ultimate determination against appellants — goes only to a requirement that any use of local union funds for the payment of legal expenses incurred in private litigation in which it was sought to protect the rights of such individual members must be submitted to a vote of the membership as a whole before such payments could be permitted as a matter of general policy. There was no attempt to discipline members who had brought such litigation merely because of their resort to the courts; all that was required was that repayment of expenses be agreed to by a majority of all whose funds were to be used for that purpose. * * * While it may be true that Landrum-Griffin protects the rights of individuals to seek relief for vindication of their rights, it cannot be said that any portion of Landrum-Griffin requires that individual members be given reimbursement by their local union for any costs that they might have incurred in defense of their rights.
* * -**•*•»
“[T]he policy determination which the General Executive Board was authorized to make was consistent with and guided by the provisions of * * * the International Constitution which prohibit loaning or donating money from the local union treasury to members. * * *
* * * * *
“In union affairs, personality clashes are the order of the day; it takes no imagination to conclude that the courts will be flooded with litigation if Title V has a scope and application, as found below, sufficient to permit the courts to question every policy determination made by the governing body of a parent international union." (Emphasis supplied).
But the International is not a party to this action and its directive was considered below only for the purpose of determining whether it afforded appellants a valid reason for violating their fiduciary duty under Title V in not paying the bills as ordered by the duly authorized majority vote of the Local members. The trial court struck down the International directive, finding that it conflicted with Congressional policy as established in Title I of the Landrum-Griffin Act by discouraging the Local members from resorting "to the federal courts when internal redress for patent federal wrongs has proven futile in the past."
"This case nominally involves the alleged breach of a fiduciary duty and the non-payment of attorneys' fees, but what is really at stake here are the rights which were jeopardized by the union trials of July, 1960." 212 F.Supp. at 256.
In essence, this controversy narrows down to the following factual features: (1) Appellees-as revealed in the findings of fact below-were denied Title I rights in internal union trials, which culminated after much local internal union strife in which appellees had dared to express opposition to the incumbent local officers (appellants). In their brief, appellants "take no exception to the formal findings of fact made by Judge Larson and as otherwise set forth in his opinion," thereby conceding such treatment of appellees during the union trials as their presumption of guilt-in violation of the procedures set forth in the union constitution; (2) Despite the obvious violations by the Local Trial Board of the trial procedures and rights of appellees as set forth in the union constitution, the International Union affirmed the unlawful action of the Local Trial Board in suspending and fining appellees; (3) Charging violation of Title I-~ 101(a) (2) and (5) of the L1VIRDA, 29 U.S.C.A. § 411(a) (2) and (5), appellees sought to set aside the improper disciplinary awards in federal court. By stipulation approved and adjudged binding by the court, the decisions of guilt made by the Local Trial Board and the penalties imposed thereby were set aside and withdrawn; (4) After further local internal strife over payment of attorneys' fees incurred by appellees in their Title I action, and after further charges were levied against appellees, a Special Trial Board, constituted pursuant to stipulation entered into in the first federal court action, dismissed the charges against appellee Nelson, reprimanded both groups, and recommended that the attorneys' fees and expenses for both sides in the union conflict be paid by Local ; (5) Although payment of appellees' attorneys' fees and related expenses was duly approved by a constitutional vote of the membership of Local, appellants refused to pay these bills. On the contrary, appellants followed a course against the wishes of the' majority vote by soliciting support for their refusal from International; (6) Despite efforts by appellees, pursuant to Title V-~ 501(b) of LMRDA, to have the union officers take remedial action, appellants still refused to pay the duly approved bills; (7) Appellees brought this action in the federal court below under Title V to force appellants to comply with the desires of the majority of Local-as expressed in their authorized vote-and pay appellees' attorneys' fees and related expenses; (8) One month after this litigation began, the General Executive Board of the International Union, on its own motion sent a directive to Local stating that the majority vote approval was null and void because it was "the subject of an unauthorized recommendation and because [it was] not properly voted upon." No union constitutional provision was cited in support of its conclusion or its further suggestion that a vote of the entire Local membership be taken.
Under these pertinent facts and stripped of the details discussed in the opinion below, we are of the view that appellants’ refusal to pay appellees’ attorneys’ fees and related expenses as duly authorized by a majority vote of the local members constituted a violation of appellants’ fiduciary responsibility within the meaning of Title V of the Landrum-Griffin Act — independent of any action by the International Union. According to Title V — § 501(a), appellants “occupy positions of trust,” yet they have breached that trust relationship, and contrary to the statutory provision, have failed “to refrain from dealing with such organization [Local] as an adverse party or in behalf of an adverse party in any matter connected with his [their] duties * * Appellants— opponents of appellees in previous proceedings — have allowed their personal feelings towards appellees to interfere with their duties as officers; have refused to pay the bills even though approved by the membership; have employed various tactics in an unsuccessful attempt to attain local approval for their conduct; have solicited support for their wrongful behavior from the International; and have thus assumed positions adverse to the interests of the local union as expressed in a majority vote, duly authorized by the union constitution. And contrary to appellants’ assertion, the authorized payments do not constitute “donations,” for the local union itself received substantial benefit from the first federal action brought by appellees. Fair and orderly procedures were restored to union trials; integrity was restored to the internal democratic processes of Local. Additionally, we agree with the trial court’s conclusion that the eleventh-hour directive of International' furnished no excuse for the action taken by appellants.
Implicit in our determinations is the recognition that, under the circumstances of this case, denial of relief to appellees under Title V would discourage resort to the courts by union members to establish their Title I rights. Likewise, to allow the directive of the International to stand as a defense to appellants’ conduct would seriously undermine and frustrate appellees’ rights under Title I. No alleged policy determination, no directive by any union official will be allowed to impair freedom of speech within the union. As stated by the court below, “it seems obvious * * that there is no point in these Petitioners [appellees] or any other union members going to their union meetings if they are going to be met with letters such as the one in this case sent by the GEB on November 15, 1961.” 212 F.Supp. at 269. See and compare, Salzhandler v. Caputo, 2 Cir., 316 F.2d 445 (1963), cert, denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275; Young v. Hayes, D.D.C., 195 F.Supp. 911 (1961); Moschetta v. Cross, supra, 48 LRRM 2669; Gilbert v. Hoisting & Portable Engineers Local Union No. 701, Or., 384 P.2d 136 (1963); Madden- v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633, 151 N.E. 2d 73, 74 A.L.R.2d 772 (1958) ; Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769 (1951). The directive from International — though seemingly a mere policy determination on its face — not only attempts to contramand the majority vote taken by Local and to deprive appellees of “reimbursement for their legal expenses for the first Federal trials; it suggested that if more kangaroo courts were forthcoming, there would be no help from GEB. This would in turn cause the Petitioners [appellees], men of modest means, to have to again seek the aid of the Federal courts. This is the way that freedom of speech in the union hall is snuffed out; this is the way that tyranny begins.” 212 F.Supp. at 270.
Of course, it is of prime significance here that a duly authorized constitutional majority of Local’s members voted to pay appellees’ expenses; that these expenses were incurred pursuing rights which are of substantial benefit to Local as a whole; that a personal animosity toward appellees motivated appellants’ refusal to pay the expenses; and that International’s eleventh-hour “policy” directive was not based upon union constitutional authority, and was not, in fact, the real cause for appellants’ conduct. We are by no means announcing a rule requiring payment of attorneys’ fees to successful union member litigants in every Title I court proceeding — regardless of the circumstances. Vars v. International Brotherhood of Boilermakers, Etc., D. Conn., 215 F.Supp. 943, 952 (1963)— cited by appellants in oral argument— is not contrary to our decision here. In Vars, the union member asserting violation of rights under Title I attempted to recover his attorneys’ fees in that very Title I action, and — among other factual differences — there had been no union vote approving such expenses to be paid by the local.
Appellants additionally assert that Parks v. International Brotherhood. of Electrical Workers, D.Md., 203 F.Supp. 288 (1962), was very strongly relied upon by the court below, that the Parks case has since been reversed, supra, 314 F.2d 886, and that the principles laid down by the Fourth Circuit in its opinion reversing the district court are decisive of the issues in this case and require a reversal of the holding below. To be sure, the court below agreed with many of the pronouncements of the district court in Parks, but the ultimate decision below was not based upon the rationale of Parks. More importantly, the factual circumstances of the two cases are clearly distinguishable. The Fourth Circuit itself stated:
“This court recognizes that should it be demonstrated in an appropriate case that the basic reason for union discipline was that the plaintiff had resorted to a court of law to secure his rights and that other reasons were mere shams, such discipline would most likely be invalid both as a breach of fiduciary obligation and because it is prohibited under §§ 609 and 101(a) (4) of the LMRDA, 29 U.S.C.A. §§ 529 and 411(a) (4). But such a case would be different from the present one. * * * ” 314 F.2d at 911.
Parks is not decisive of the issues here involved.
Accordingly, we affirm.
. § 501(a) provides in part:
“The officers * * * and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordanee with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder, to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization * * *. A general exculpatory provision in the constitution and bylaws of such a labor organization or a general exculpatory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy.”
§ 501(b) provides the jurisdictional base for institution of an action by a union member against an officer or other representative for alleged violation of § 501 (a). Since no question regarding the § 501(b) requirements for institution of such an action is raised on appeal, we need not set forth the subsection here.
. § 411(a) (2) provides in part:
“Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings * *
§ 411(a) (5) provides:
“No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (0) afforded a full and fair hearing.”
. On oral argument, counsel for appellees asserted that the attorneys' fees and expenses of appellants in the first federal action have been paid by Local. Counsel for appellants indicated that he wasn't aware that such bills had been paid, and that, in any event; they should not have been.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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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".
UNITED STATES of America, for the Use and Benefit of CARTER EQUIPMENT COMPANY, INC., Plaintiff-Appellee, v. H. R. MORGAN, INC. and National Indemnity Company, Defendants-Appellants.
No. 75-2362.
United States Court of Appeals, Fifth Circuit.
June 16, 1977.
Thomas W. Tyner, Hattiesburg, Miss., for H. R. Morgan & Nat’l Indemnity.
Francis T. Zachary, Hattiesburg, Miss., for H. R.. Morgan.
Wm. H. Cox, Jr., Jackson, Miss., D. Gary Sutherland, Hattiesburg, Miss., for plaintiff-appellee.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion January 10, 1977, 5 Cir., 1977, 544 F.2d 1271).
Before COLEMAN, GODBOLD and HILL, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is GRANTED. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED. The appellee, Carter Equipment Co., Inc. (Carter), suggests in its petition for rehearing that our decision disallowing the recovery of attorney’s fees in this Miller Act suit was erroneous. We agree and the following is to be substituted for the last paragraph of our prior opinion:
Finally, appellants insist that the district court erred in awarding attorney’s fees to Carter. The issue is whether a contractual provision for attorney’s fees between a subcontractor and its supplier is enforceable against the general contractor and its surety under the Miller Act. Carter asserts that since the equipment rentals provided for the recovery of attorney’s fees, this award is recoverable under the general terms of the payment bond, interpreted with a view toward the liberal purpose of the Miller Act.
The relevant statutory language provides that “[ejvery person who has furnished labor or material in the prosecution of the work provided for in such contract . who has not been paid in full therefor . shall have the right to sue on such payment bond . . . for the sum or sums justly due him”. 40 U.S.C.A. § 270b(a). It is important to note that the statute does not differentiate between the scope of coverage for the liabilities of subcontractors as opposed to the scope of coverage for the liabilities of general contractors. While the statute does impose some additional notice requirements on persons having no direct contractual relationship with the general contractor, insofar as financial coverage of the bond is concerned, a supplier of the subcontractor is equally as entitled to be “paid in full” for “the sums justly due him.”
The Supreme Court allowed the recovery of attorney’s fees in United States ex rel. Sherman v. Garter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). A provision for the award of attorney’s fees was contained in a contract between the general contractor and the trustees of an employees’ welfare fund. The Supreme Court held that the attorney’s fees were “sums justly due” under the Miller Act. Since there appears to be no statutory basis for distinguishing between the recovery allowed to the supplier of a subcontractor and that of a person dealing directly with the general contractor, we conclude that attorney’s fees are a recoverable item under this Miller Act bond. At least two other circuits have reached this same conclusion. Travelers Indemnity Co. v. United States ex rel. Western Steel Co., 362 F.2d 896 (9th Cir. 1966); D & L Construction Co. v. Triangle Electric Supply Co., Inc., 332 F.2d 1009 (8th Cir. 1964).
There is some authority in this circuit which would support a contrary conclusion. The court in United States ex rel. Mississippi Road Supply Co. v. Morgan, 542 F.2d 262 (5th Cir. 1976), posited that “[e]ven under the more liberal rules of construction applicable in Miller Act eases, precedent indicates that the terms of this bond would not support an award of attorney’s fees.” Id. at 269. However, the Mississippi Road Supply court was concerned with a hybrid bond that was neither fish nor fowl. The court merely recited this circuit’s position with regard to Miller Act bonds as reflected in Transamerica Insurance Co. v. Red Top Metal Inc., 384 F.2d 752 (5th Cir. 1967). The Supreme Court subsequent to Red Top Metal disapproved of our practice of looking to state law for resolution of the attorney’s fee issue. F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). Of course, we are bound to apply the decision in F. D. Rich to the instant suit and upon application of purely federal law we conclude that the contractual provision for attorney’s fees in this case is enforceable under the Miller Act bond.
REVERSED and REMANDED.
. ATTORNEY’S FEES. Should it become necessary that Lessor employ an attorney to enforce any of the provosions (sic) of this Agreement, to take possession of the equipment covered hereby or any part thereof, or to recover any sum of money due hereunder, Lessor shall be entitled to recover such reasonable attorney’s fees and expenses as shall be incurred in connection therewith.
. The language relied upon provides:
“NOW THEREFORE, if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract, . .
Question: 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_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).
NORTHWEST EQUIPMENT SALES CO., a Washington Corporation, Plaintiff-Appellee, v. WESTERN PACKERS, INC., an Idaho Corporation, Defendant-Appellant, The Small Business Administration, United States Government, Defendants.
No. 78-1043.
United States Court of Appeals, Ninth Circuit.
July 10, 1980.
Herbert W. Rettig, Rettig, Rosenberry & Roberts, Caldwell, Idaho, for defendant-appellant.
William F. Almon, Halverson, Applegate, McDonald, Bond, Grahn, Wiehl & Almon, Yakima, Wash., for plaintiff-appellee.
Before SKELTON , Judge, and FARRIS and PREGERSON, Circuit Judges.
Hon. Byron G. Skelton, Senior Judge of the United States Court of Claims, sitting by designation.
FARRIS, Circuit Judge:
Western Packers, Inc. is appealing from the Idaho federal district court’s decision that appellee Northwest Equipment Sales Co. has a security interest in certain fixtures which is prior to the interest that Western acquired by purchasing the fixtures at a foreclosure sale. Under Idaho law, the foreclosure sale discharged Northwest Equipment’s security interest. We, therefore, reverse and remand for the district court to enter an order directing Northwest to refund the judgment paid by Western Packers.
FACTS
Northwest Equipment sold to Orchards, Inc. various items of fruit packing machinery, retaining a security interest to secure the purchase price. Orchards, Inc. affixed the machinery to real property which it purchased the day after affixation. Cold-house, Inc. succeeded to Orchard’s interest in both the real property and the fruit packing machinery. Coldhouse mortgaged the real property with its fixtures to First Security Bank of Idaho and to Gem County Development Company.
The Bank and Gem assigned their mortgages to the Small Business Administration (SBA). Coldhouse defaulted and the SBA foreclosed, selling both the real property and the fruit packing machinery to Western Packers. Northwest Equipment brought an action against both Western Packers and the SBA in an Idaho state court, alleging the priority of its purchase money security interest in the machinery. The SBA had the action removed to federal district court.
PROCEDURAL BACKGROUND
The appeal presents us for the second time with the conflict between the interests of Northwest Equipment and Western Packers in the fruit packing machinery purchased by Western at an SBA private foreclosure sale. Northwest Equipment initially sued both Western Packers and the SBA contending that each had purchased the machinery with knowledge of Northwest’s existing security interest. Thus, Northwest maintained, Western Packers and the SBA were not entitled to protection under Idaho Code § 28-9-313(4) (1967) as subsequent purchasers without knowledge.
The district court rejected Northwest’s contention. It held that the SBA’s interest had priority over Northwest’s because the SBA had purchased the entire interest of the original mortgagees, First Security Bank and Gem County Development, who themselves had taken mortgages on the machinery without knowledge of Northwest’s interest. The district court held further that Western Packers’ interest was prior to Northwest’s since Western had purchased the entirety of the SBA’s superior mortgage interest.
Northwest Equipment appealed from the district court’s judgment quieting title in Western Packers. We vacated the district court’s finding that the original mortgagee, Gem County Development, had taken its interest in the machinery without knowledge of Northwest’s purchase money security interest. Northwest Equipment Sales Co. v. Western Packers Inc., 543 F.2d 65, 67 (9th Cir. 1976). We remanded for further proceedings to determine whether Western Packers and the SBA had themselves taken without knowledge and were thus independently entitled to the protection of section 28-9-313(4) regardless of the priority of their predecessors’ interests.
The district court, on remand, found that the SBA had taken the mortgage interests of Gem and the Bank without knowledge of Northwest’s interest but that Western Packers had knowledge when it purchased at the SBA’s foreclosure sale. The district court concluded, therefore, that the SBA took the property clear of Northwest’s interest but that Western Packers, not being entitled to protection as a purchaser without knowledge under section 28-9-313(4), took the property from the SBA subject to Northwest’s interest.
DISCUSSION
Northwest does not dispute the district court’s finding that the SBA lacked knowledge of Northwest’s security interest when it took the assignment of the mortgages from Gem and the Bank. Nor does Northwest contest the district court’s conclusion, based on that finding, that the SBA took the machinery clear of the purchase money security interest under section 28-9-313(4). Both parties agree that the crucial question is whether Western Packers’ knowledge at the time of its purchase from the SBA precluded it from taking the machinery clear of Northwest’s interest.
Northwest Equipment argues that we resolved this question in the previous appeal. We disagree. The basis of our prior remand was our inability to accept the district court’s finding that there was “no evidence’’ in the record that Gem took its mortgage interest in the machinery without knowledge. 543 F.2d at 67. We stated further, in dictum, that “we would not make the assumption of law that the predecessors’ lack of knowledge fulfills the statutory requirement [of section 28-9-313(4)] for the S.B.A. and Western.” Id.
In light of the new facts which the district court found pursuant to our remand, we conclude that the priority of Western Packers’ interest is not governed by section 28-9-314(4). The SBA held a security interest in the fruit packing machinery both under the Uniform Commercial Code and under its real estate deed of trust which covered the real property and fixtures. The SBA’s interest based on its deed of trust is prior, under section 28-9-314(4), to Northwest’s Article Nine security interest. The SBA’s Article Nine interest in the machinery, being unperfected because of an improper filing, was not prior to Northwest’s.
Accordingly, Western Packers argues, the SBA’s sale was the foreclosure of a real estate mortgage governed by Idaho real estate law. Under Idaho Code § 45-1508, a foreclosure sale under a deed of trust “shall foreclose and terminate all interest in the property covered by the trust deed of all persons to whom notice is given under subsection (2) of section 45-1505 . . . .” The SBA gave notice to Northwest Equipment of the sale of both the fruit packing machinery and the real estate. Northwest does not challenge the validity of this notice or of any other aspect of the foreclosure sale procedure. Thus, if Western Packers is correct in maintaining that Idaho’s real estate mortgage foreclosure law governs, the SBA’s sale terminated Northwest’s interest. Idaho Code § 28-9-312(1) (1967) provides that section 28-9-313 governs the priorities between security interests in fixtures and interests in real estate. If Northwest’s interest has been terminated, then section 28-9-313 is inapplicable.
The result is the same even if the SBA’s sale was governed by Idaho’s commercial code, as Northwest Equipment asserts. Section 28-9-504(4) provides that, in a private foreclosure sale:
When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of this Part or of any judicial proceedings
. if the purchaser acts in good faith.
Northwest contends that Western Packers cannot satisfy the “good faith” requirement because of its knowledge of Northwest’s subordinate interest. It is not clear from the face of this subsection whether the good faith requirement applies to purchasers at all private sales or only those at sales which fail to comply with Part 5 of Article Nine. The parties have not cited and we have not found any Idaho cases resolving the issue. Section 28-1-203, however, imposes “an obligation of good faith” in the performance or enforcement of “every contract or duty” within the code. We will accept arguendo Northwest’s contention that Western Packers cut off Northwest’s interest only if Western Packers purchased the machinery in “good faith.”
The issue then becomes whether good faith is inconsistent with the purchasing an interest with knowledge of an existing subordinate claim. Section 28-1-201(19) defines good faith as “honesty in fact in the conduct or transaction concerned.” An examination of the priority and foreclosure scheme of Article Nine demonstrates that absence of knowledge of subordinate security interests could not be a prerequisite for a purchaser to buy property free of encumbrances at a foreclosure sale.
If absence of knowledge were required, the party whose interest would be undermined would be the secured party who was conducting the sale. Northwest, under such an interpretation of the good faith requirement, would be able to notify all prospective purchasers at the SBA’s sale either by filing a financing statement or by attending the sale and announcing its interest. The SBA would, thus, be able to sell only to someone willing to pay off Northwest’s interests. The SBA properly recorded its real estate mortgage without notice or knowledge of Northwest’s interest. Northwest could have protected itself by filing its financing statement properly. With certain specifically enumerated exceptions not applicable here, Article Nine consistently reflects the policy that conflicting interests in property should be resolved in favor of the party that properly filed and against the party that could have protected itself by filing but failed to do so.
CONCLUSION
The SBA properly recorded its real estate mortgage covering the machinery. The interpretation of the good faith requirement of section 28-9-504(4) which Northwest urges would devalue the interest acquired by a party in the SBA’s position in favor of a party that failed to properly avail itself of the Code’s protection. Western Packers purchased the fruit packing machinery in good faith and thus discharged Northwest’s interest.
We reverse and remand to the district court for entry of an order directing Northwest to refund the money paid it by Western Packers in satisfaction of the court’s judgment.
Reversed and remanded.
. The version of the Uniform Commercial Code adopted by Idaho in 1967 governs this case. Note that an amended version was adopted in 1979.
. The district court also concluded that Western Packers was not protected by Idaho’s successor-in-interest rule under § 28-9-312(2). Western has not appealed in this decision.
. Because this case is governed by Idaho foreclosure sale law and not by § 28-9-313(4), we need not decide whether the requirement of lack of knowledge under that subsection may be satisfied by a purchaser’s predecessor’s ignorance.
. Filing a financing statement alone might be insufficient since it would give prospective purchasers notice but not necessarily knowledge. Section 28-1-201 provides that knowledge means actual knowledge.
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_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
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASTER SLACK AND/OR MASTER TROUSERS CORP., Hardeman Garment Corp., Morehouse Garment Corp., Lauderdale Garment Corp., and Lobel-ville Garment Corp., Respondents.
No. 84-5387.
United States Court of Appeals, Sixth Circuit.
Argued April 4, 1985.
Decided Sept. 17, 1985.
Elliott Moore, W. Christian Schumann, Michael David Fox, Deputy Associate Gen. Counsel, N.L.R.B., National Labor Relations Board, Margaret Bezou, argued, Washington, D.C., for petitioner.
Thomas J. Hughes, Jr. (argued), Jackson, Lewis, Schnitzler & Krupman, Ann Bach-man Hale, Atlanta, Ga., for respondents.
Before KEITH and KRUPANSKY, Circuit Judges, and COHN, District Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
COHN, District Judge.
The National Labor Relations Board (the Board) petitions to enforce a supplemental back pay order directing respondents to make whole 28 discriminatees who were wrongfully discharged by Hardeman Garment Corp. (Hardeman), a subsidiary of Master Slack and/or Master Trousers Corp. Respondents challenge the Board order only as it relates to 11 discrimina-tees, and do not dispute the back pay awards ordered for the other 17. Their primary contention is that the Board erred in holding that certain findings made in the underlying unfair labor practices proceeding precluded respondents from contending in the back pay proceeding that a plant shutdown should cut off the back pay awards. Respondents also contend the Board’s back pay awards to two discrimina-tees are not supported by substantial evidence.
For the reasons stated below, we enforce the order only in part.
I. HISTORY
On July 20, 1973, the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Union), won an election among Hardeman’s production and maintenance employees at a plant located in Bolivar, Tennessee. The Union was certified by the Board on January 4, 1974.
Hardeman opposed the Union’s certification and continued to operate on the whole as if the Union didn’t exist. The Union filed several unfair labor practice charges from 1973 through 1974 over various company practices. The charges were consolidated and a single hearing was held before administrative law judge Thomas A. Ricci. As relevant here Judge Ricci found that Hardeman had violated Section 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(3), in terminating the night shift at the Bolivar plant, which resulted in the lay off of 20 workers, 3 days before the union election.
The Board, after exceptions were filed by both sides to Judge Ricci’s order, affirmed this ruling and determined that Hardeman had also violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), in laying off 8 more employees due to stricter enforcement of absenteeism and tardiness rules after the Union won the election. The Board further found Hardeman had violated Sections 8(a)(1) and (5) in failing to notify and bargain with the Union prior to the layoff of all employees (about 400) when the Bolivar plant was shut down in the fall of 1974 and also in failing to notify and bargain with the Union when the plant was reopened in 1975 and 80 employees were recalled. This court enforced the Board’s order. See NLRB v. Master Slack, 618 F.2d 6 (6th Cir.1980).
Judge Ricci, in discussing the appropriate remedy in the unfair labor practices proceeding, found that back pay awards in many cases should continue past the plant shutdown in 1974, even though he had earlier stated, “[tjhere is no contention by the General Counsel that the 1974 closing was occasioned by anything other than purely economic factors.” In their orders neither Judge Ricci nor the Board stated that back pay awards should run for any particular period; the orders merely stated that wrongfully discharged employees should be made whole “for any loss of pay or any benefits they may have suffered by reason of Respondent's discrimination against all of them.” Respondents did not object to Judge Ricci’s specific findings made about the length of the back pay periods in either their exceptions to the Board or in the enforcement proceeding before this court.
When the parties were unable to agree on compliance a supplemental hearing was held on June 23 and 24, 1981 before administrative law judge Philip P. McLeod. Judge McLeod rejected the company’s argument that the plant shutdown in 1974 should cut off back pay awards for all discriminatees. He concluded the doctrine of res judicata barred respondents from relitigating that issue since Judge Ricci had found that back pay awards in several instances continued past the shutdown. He further concluded that since respondents had acted unlawfully in shutting down and reopening the plant by failing to bargain with the Union the back pay awards should continue past that point.
In this proceeding for enforcement of the Board’s back pay order respondents contend Judge Ricci’s findings should not preclude relitigation on the effect of the plant shutdown on back pay awards. Respondents also contend there is not substantial evidence in the record to support the back pay awards to Willie Spencer and Margie Wilson.
II. ISSUE PRECLUSION
We must first determine whether Judge Ricci’s general finding that many back pay periods were to continue past the point of the plant shutdown precluded relitigation in the back pay proceeding on the effect of the plant shutdown on back pay awards. Generally, a factual finding which was necessary to support the judgment in a prior proceeding will bar relitigation on that issue in a subsequent proceeding involving the same parties. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 and n. 5, 99 S.Ct. 645, 649 and n. 5, 58 L.Ed.2d 552 (1979); Marlene Industries Corp. v. National Labor Relations Board, 712 F.2d 1011, 1015-16 (6th Cir.1983); United States v. Stauffer Chemical Co., 684 F.2d 1174, 1180 (6th Cir.1982), aff'd 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). The policies underlying this rule include the preservation of judicial resources and the protection of litigants. Montana, supra, 440 U.S. at 153-54, 99 S.Ct. at 973-74. The findings of agencies made in the course of proceedings which are judicial in nature should be given the same preclusive effect as findings made by a court. United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966).
Issue preclusion should only be applied where the identical issue sought to be relitigated was actually determined and necessarily decided in a prior proceeding in which the litigant against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. See Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Parklane Hosiery, supra, at 326 n. 5; Marlene Industries, supra, at 1015-16. A factual issue is “necessarily decided” if its determination was necessary to support the judgment entered in the prior proceeding. See 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4421, p. 192; Marlene Industries, supra, at 1015-16.
While the effect of the 1974 shutdown and 1975 reopening of the plant was actually litigated in the underlying unfair labor practices proceeding it was not necessary to the Board’s order. Accordingly Judge Ricci’s findings cannot preclude relitigation on that issue in the supplemental backpay proceeding.
“ Tt is basic to the law of [issue preclusion] that a finding in one proceeding cannot bind tribunals in subsequent cases unless the finding acted as a basis for final judgment in the first.’ ‘The determination of an issue in an earlier proceeding must be essential to the judgment; it cannot be dicta.’ ” (citations omitted)
Marlene Industries, supra, at 1015-16. See also Block v. Bourbon County Commissioners, 99 U.S. (4 Otto) 686, 693, 25 L.Ed. 491 (1878); Segal v. American Telephone & Telegraph Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.1979); Evans v. Wilkerson, 605 F.2d 369, 372 (7th Cir.1979).
Judge Ricci’s finding that back pay periods should continue past the point of the plant shutdown was not essential to either his order or the Board’s order; it was mere dicta. The Board’s order, like Judge Ric-ci’s order, simply states that respondents “shall ... [m]ake all ... [wrongfully discharged] employees whole for any loss of pay or any other benefits they may have suffered by reason of the respondent’s discrimination against all of them.” This is typical of orders in unfair labor practices proceedings where the Board simply determines if unfair labor practices have occurred and what remedies would effectuate the purposes of the Act. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 447, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); 29 C.F.R. § 102.45. The exact amount of back pay owing is not stated and is left to be determined in a subsequent back pay proceeding if the parties cannot resolve the amounts owing informally. See Deena Artware, supra; 29 C.F.R. § 102.52. Drawing an analogy from court cases, the unfair labor practices proceeding determines liability; a subsequent back pay proceeding, if necessary, determines damages.
The only factual determinations necessarily decided to enter an order that discharged employees be made whole are (1) that the respondent violated the Act in discharging employees, and, (2) that back pay is an appropriate remedy. See Section 10(c) of the Act, 29 U.S.C. § 160(c). It is not necessary to determine the exact amount of back pay owing nor whether subsequent events would have resulted in layoffs of discharged employees totally apart from the wrongful conduct.
“[Questions relating to the exact amount of back pay owing (including whether ... at some reasonably determinable date employment with [the company] would not have been available because [company] operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in [an] enforcement petition. Those issues may be explored in a compliance proceeding.”
Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255-56 (9th Cir.1978). See also, NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2nd Cir.1966).
In sum, Judge Ricci’s finding that back pay awards should continue past the point of the 1974 plant shutdown was not necessary to support his order or the Board’s order and therefore his finding does not bar relitigation on that issue. To the contrary, the determination of whether the shutdown should cut off back pay awards belonged in the back pay proceeding.
III. SECTION 8(a)(5) VIOLATIONS
This does not settle the matter since Judge McLeod did not solely rely on the doctrine of issue preclusion in ruling that the plant shutdown would not terminate back pay awards. He alternatively ruled against respondents because Hardeman violated § 8(a)(5) in failing to bargain with the Union when the plant was shut down in 1974 and reopened in 1975. He reasoned:
“Respondent’s argument [that the plant shutdown should terminate all backpay awards] overlooks the fact that the Board, with Circuit Court agreement, found the method in which Respondent effected both the layoff and recall to be unlawful in violation of Section 8(a)(5) of the Act. In order to find merit to this asserted defense of Respondent, one would have to invoke a presumption that if Respondent had acted lawfully and fulfilled its obligation to bargain with the Union in good faith, the exact same result would have occurred as did occur. Since it is impossible to determine what would have occurred if Respondent had fulfilled its lawful obligation to bargain with the Union, Respondent’s unlawful conduct could not serve to terminate backpay.”
Judge McLeod’s ruling, however, does not have factual support in the record and the remedy of back pay past the plant shutdown goes beyond the scope of proper remedies under the Act.
Section 10(c) of the Act, 29 U.S.C. § 160(c), charges the Board with “taking such affirmative action including reinstatement of an employée with or without back pay as will effectuate the policies of [the Act].” The Board’s discretion to fashion appropriate remedies for violations of the Act is quite broad and its choice of remedies should be set aside only if “it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969) (citation omitted).
Back pay awards are intended to “mak[e] employees whole for losses suffered on account of an unfair labor practice.” Id. (citation omitted). The purpose is to “restor[e] the economic status quo that would have obtained but for the company’s wrongful [act].” Id. It is improper, however, to award back pay if an employer can show that even if employees had been treated with total fairness they would have been discharged at a later date. See NLRB v. J.S. Alberici Construction Co., Inc., 591 F.2d 463, 470 n. 8 (8th Cir.1979); NLRB v. Amoco Chemicals Corp., 529 F.2d 427 (5th Cir.1976).
The Board ordered that backpay awards of employees discharged in 1973 continue past the shutdown of the Hardeman plant in the fall of 1974 solely because Hardeman failed to bargain with the Union over the effects of the shutdown and subsequent reopening of the plant. There was no finding, and no evidence, that the shutdown of the plant was motivated by any anti-union animus in violation of § 8(a)(3).
Backpay can be an appropriate remedy for a § 8(a)(5) violation. See Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254 (8th Cir.1970); Avila Group, Inc., 218 NLRB 633, 89 LRRM 1364 (1975); see also The Developing Labor Law, pp. 1676-1678 (Morris ed. 2d ed. 1985). It is a proper remedy where it serves to make whole employees for losses suffered due to an employer’s failure to bargain, and also where it creates an incentive for the employer to bargain in good faith with the union representing the employees. See Avila Group, supra. The backpay award in a failure to bargain case runs from the date of termination only until the parties reach agreement or a good faith impasse in bargaining, see The Developing Labor Law, supra, at 1677, and in any event is cut off if the union fails to request bargaining. Morrison Cafeterias, supra, at 254.
In this case the decision that back-pay awards for employees who had been wrongfully discharged over a year before the plant shutdown continue past the shutdown does not appear to serve any proper remedial purpose under the Act. All employees suffered equally due to Hardeman’s failure to bargain with the Union. The 11 employees listed in footnote 3 have no right under the Act, absent special facts, to preferential treatment over other employees. Seven of the 11 had been recalled to work before the plant shutdown. Backpay awards dating from the time each employee was wrongfully terminated until they were recalled or until the plant shutdown fully reestablishes the status quo and puts those individuals on an equal economic footing with all other plant employees. Any backpay awarded to remedy Hardeman’s failure to bargain, if appropriate at all, should be awarded equally to all employees affected by the plant shutdown, since all were equally injured by Harde-man’s failure to bargain, and not just to the 11 employees listed in footnote 3. The backpay awards for these 11 employees, insofar as they extend past the plant shutdown, appear to be punitive rather than remedial.
The Board’s order, awarding backpay past the plant shutdown only to certain employees, can be enforced only if there is evidence in the record to support the distinction made between employees who had been illegally terminated at an earlier date and all other employees. This requires a finding that had Hardeman bargained in good faith over the effects of the plant shutdown and the subsequent reopening the 11 employees listed in footnote 3 would have been given preferential hiring rights over all other employees.
Had Hardeman bargained in good faith with the Union several things could have happened. Hardeman and the Union could have reached an agreement to keep the plant totally or partially opened. However, even after bargaining in good faith, Harde-man could still have elected to shut down the plant for purely economic reasons. Hardeman was not required to bargain over the actual decision to shut down the plant but only over the effect of that decision on its employees. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981); NLRB v. Gibraltar Industries, Inc., 653 F.2d 1091 (6th Cir.1981). On the sparse record before us it is wholly speculative to state what would have happened had Hardeman bargained with the Union concerning the effects of the shutdown and reopening of its plant. It stretches credulity to suggest that the Union, charged with representing all plant employees, would have insisted that the 11 discriminatees listed in footnote 3 be given preferential hiring, disregarding their length of service in relation to other employees.
Backpay awards to the 11 employees listed in footnote 3 which extend past the plant shutdowns do not further any policy under the Act and will not be enforced.
IV. WILLIE SPENCER AND MARGIE WILSON
Respondents specifically challenge the Board's award of back pay to two discrimi-natees as not supported by substantial evidence in the record. Respondents argue Willie Spencer never looked for replacement work after being discharged from Hardeman and is therefore not entitled to back pay. Respondents also contend Margie Wilson failed to engage in a diligent search for interim employment after the second quarter of 1974.
When an employee is discharged due to anti-union animus there is a presumption that some back pay is owing. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2nd Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). The respondent has the burden of proving that a back pay award should be reduced due to a willful failure to seek interim employment. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978). This court recently summarized the law concerning the failure of discharged employees to mitigate damages in NLRB v. The Westin Hotel, 758 F.2d 1126 (6th Cir.1985):
“[A] wrongfully discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage.
Finally, it must be remembered that the Board’s conclusion as to whether an employer’s asserted defenses against liability have been successfully established will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board’s findings.”
Id. at 1130 (citations omitted).
A. Willie Spencer
Willie Spencer already had a day job when he was laid off by Hardeman. He did not look for other work until he was laid off from his day job. Respondents contend this demonstrates Spencer’s night job at Hardeman was only “supplemental”. Judge McLeod found that it was impossible to determine which job was “primary” and which “supplemental”, and that it was just as plausible to assume that had Spencer lost his day job he would have been content to work at only his night job at Hardeman. Judge McLeod’s determination is reasonable on the record before us; there is therefore substantial evidence to support the Board’s decision that Spencer was entitled to back pay, with the computation being tolled during the period he worked at his day job. After he was laid off from his day job, Spencer diligently looked for other employment. The Board’s order for back pay to Spencer is enforced, with the limitation set forth in Section III of this opinion.
B. Margie Wilson
Margie Wilson’s testimony was that she consistently applied for jobs from 1973 through 1980. Respondents contend her testimony showed that when she was employed during that period her efforts at working were half-hearted and that as a consequence she made herself unemployable.
Wilson explained the reasons she left each job where she was employed from 1973 through 1980. Judge McLeod credited her testimony, even though he found her answers were often “vague and indefinite.” He noted Wilson is rural and uneducated and that the vagueness in her testimony was probably caused by these factors coupled with the difficulty of remembering events spreading over 8 years prior to the hearing. There is substantial evidence in the record to support the Board’s order of back pay to Wilson; she made a “reasonable effort to mitigate damages.” Westin Hotel, supra, at 1130.
V. SUMMARY
The Board’s order of back pay for the 17 discriminatees listed in footnote 4 is enforced in full. Respondents do not challenge those awards. The Board order of back pay for the 11 discriminatees listed in footnote 3 is only enforced through the mid-third quarter of 1974, when the Harde-man plant shut down. Any backpay award to the employees listed in footnote 3 beyond that quarter is denied enforcement.
. These individuals are called discriminatees because their discharge was motivated by an anti-union discriminatory animus.
. Apart from Master Slack the other named respondents are all, like Hardeman, wholly owned subsidiaries of Master Slack. Master Slack and the other subsidiaries were joined as defendants solely for purposes of the back pay awards. See NLRB v. Master Stack, 618 F.2d 6 (6th Cir.1980).
. Earlie Cheairs, Ray Davis, Alma Jones, Nathaniel McClellan, Gladys McGowan, Doris McNeal, Wiley Murphy, Lurlene Pirtle, Willie Spencer, Ressie Ford Traylor, and Margie Wilson. Of these, Cheairs, Traylor, Pirtle, McNeal, McClellan, Jones, and Davis were rehired at various points in time from August, 1973 through May, 1974. However, they all lost their jobs when the Hardeman plant was shut down in the fall of 1974 and none of them were rehired when the plant reopened in 1975.
. Grace Beard, Mose Burkley, Peggy Peoples Harris, Freddie Jones, Mattie Jones, Earline Lake, Leroy Lake, Annie McKinnie, Percy McNeal, Donald Moss, Vera Norment, Juanita Phillips, Allan Lynn Russell, Johnny Russell, Leo Sain, Ernest Williams, and Patricia Williams.
. Willie Spencer and Margie Wilson, 2 of the 11 discriminatees listed in footnote 3, supra.
. This section states that it shall be an unfair labor practice for an employer to "discrimi-nat[e] in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage membership in any labor organization.”
. Sec. 8(a)(1) states that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights [to organize and participate in labor organizations]”.
. In Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984), the United States Supreme Court discussed the confusing variance in terminology surrounding the concept of preclusion:
“The preclusive effects of former adjudications are discussed in varying and, at times, seemingly conflicting terminology____ These effects are referred to by most commentators as the doctrine of ‘res judicata’. Res judicata is often analyzed further to consist of two preclusion concepts: 'issue preclusion’ and ‘claim preclusion’. Issue preclusion refers to the effect of a judgment in foreclosing relit-igation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit____
This Court on more than one occasion has used the term 'res judicata’ in a narrow sense, so as to exclude issue preclusion or collateral estoppel. When using that formulation, ‘res judicata’ becomes virtually synonymous with ‘claim preclusion’. In order to avoid confusion resulting from the two uses of ‘res judica-ta’, this opinion utilizes the term ‘claim preclusion' to refer to the preclusive effect of a judgment in foreclosing relitigation of matters that should have been raised in an earlier suit.”
In this case the parties and the Board all referred generally to the doctrine of “res judica-ta” even though the problem here is one of issue preclusion rather than claim preclusion. For the sake of clarity this court will follow the lead of the Supreme Court. Accordingly, the term "issue preclusion” will be used throughout this opinion in discussing whether respondent is foreclosed from relitigating issues decided in the prior unfair labor practices proceeding.
. Had the Board found that anti-union animus in violation of § 8(a)(3) had been the cause of the plant shutdown it could have awarded back-pay extending past the plant shutdown not only to employees illegally discharged prior to the shutdown but to all the employees at the plant. See NLRB v. National Car Rental System, Inc., 672 F.2d 1182, 1191 (3d Cir.1982); Electrical Products Division of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir.1980), cert. den. 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980).
. The record does not contain the date when Spencer was laid off from his day job.
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED ADVERTISING CORPORATION OF TEXAS v. STIMSON et al.
No. 8183.
Circuit Court of Appeals, Fifth Circuit.
April 17, 1937.
Rehearing Denied May 18,1937.
J. Hart Willis, of Dallas, Tex., Geo. L. Wilkinson, of Chicago, Ill., and Edward H. Cumpston, of Rochester, N. Y., for appellant.
John H. Bruninga, of St. Louis, Mo., and Robert B. Holland, of Dallas, Tex., for appellees.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
This is an appeal from an interlocutory decree sustaining the validity, as to claims 2, 3, 12, and 13, of letters patent of the United States, Re No. 18,166 reissued August 25, 1931, to Jonathan Stimson for improvements in luminous display or reflector sign's. The appellees, Stimson and American Gas Accumulator Company, were decreed to be the owners of said patent and the exclusive licensees thereunder, respectively. The appellant, United Advertising Corporation of Texas, was adjudged to have infringed said four claims by the manufacture and installation of signs employing reflector units not manufactured or licensed by appellees. A permanent writ of injunction was issued restraining further infringement, and a master was appointed by the court to assess the damages sustained by appellees.
Claim 2 of the patent in suit refers to a light" source and luminous sign made of letters displayed by means of a reflecting area, composed of a series of reflecting units arranged in a contiguous relation, and constructed and positioned to cause a definite spread of the reflected light and to confine it to a selected field. Claim 3 is identical with claim 2, except therein it is specified that each of the reflecting units shall be so constructed as to cause a definite beam-spread of uniform intensity, the composite beam from’ all the units being confined within the selected field. Claim 12 refers to a reflecting sign in which the characters are outlined with units of reflecting areas adapted to reflect incident light from a distant source in the general direction of its origin with a slight spread of the reflected light. Claim 13 is the same as claim 12, except that the sign is described as having reflecting units arranged along the strokes of the characters.
Nowhere in the patent is there a description of the reflecting area or of the reflecting units, nor is there any direction as to how such reflection is to be accomplished. In the drawings accompanying the application, illustrations are given which disclose that the patentee contemplated the use of pressed or molded glass plates made up of cube-cornered prisms. These plates are known to give the effect of a multiplicity of contiguous triple reflector units. The sign which it is alleged infringes the patent is made up of multiple lens-mirror buttons, also known to have a retroreflec-tive effect on the light falling within their range of operation.
An ideal triple reflector would be made up of three triangular plane mirrors so shaped and placed that each would be at right angles to the other, forming a prism having a front or base which would make an equilateral triangle. In addition to the base, this prism would have three triangular sides,, each with a right angle at its apex and 45 degree angles at its base. When a ray of light traveling toward the base of the prism, in a line of not too great deviation from the perpendicular thereto, would strike one of the plane mirrors, its reflection being in accordance with the rule that the angle of reflection is equal to the angle of incidence, it would be reflected to a second mirror, thence to a third, thence back to its source, much the same as if it had encountered a single plane mirror perpendicular to the ray and of a size and shape equal to the projection of the triangular base on a plane perpendicular to the course of the light. This is because each of the three reflectors, being set in a different plane, and all being at angles with any plane passing through the line of direction in which the light travels, would reflect the light at angles which, when projected on any plane passing through the line of light, would total 180 degrees.
However, it is elementary that unre-fracted light does not travel in parallel lines, but that every beam is traveling with a definite spread which is in proportion to the square of the distance from its source. It is also known that a plane reflector does not interrupt this spread, but simply changes its direction, so that if the direction of reflection is opposite to the direction of radiation, the light from a single point will have spread over an area with dimensions twice those of the mirror when it returns to its source. It is also known that visible light does not radiate from a single point but, in every instance, comes -from an infinite number of points or a radiant surface. Hence, if the radiant surface is equal in size and shape to the mirror, the reflected light returns to its source in a beam of equal intensity over an area equal to that of the radiant surface, outside of, and immediately surrounding which, there is an illuminated area of diminishing intensity beginning with that of the inclosed area and disappearing altogether when its outside dimensions are three times as great
The lens mirror used by appellants does not embody any of the characteristics of the triple reflector. In principle, it focuses the beam of incident light by lens refraction, so that it is brought together at a point on a concave mirror so curved as to have its tangent at the point of reflection perpendicular to the axis of the cone of refracted light. This causes reflection of a cone of identical dimensions, but in which the rays of light have been reversed in their positions. Passing out through the same lens, they are again arranged in substantially the same relation as when they entered. In practice, with corrections for spherical and chromatic aberrations, and a slight deviation from a true focus, the lens mirror button produces a luminous area of uniform intensity with a light spread much greater than that of the incident light. It makes no difference whether the mirror be ahead of the focus or behind it, or whether the light converges in front of the lens, or scatters on leaving it; so long as the rays are not parallel, or nearly so, the reflected light is spread over a field the size of which is determined by the curvature of the lens and mirror, or their relationship to each other.
In the devices used by both appellant and appellees, manufacturing inaccuracies play an important part. In pressed or molded cube prism plate glass, bulges and ridges occur in the surface of the cube faces, or the same condition may result from irregular contraction while cooling. These irregularities are relied upon by ap-pellees to produce a spread in the light. However, another spread occurs because of unavoidable deviations from right angles on the edges of the cubes. A deviation in one angle results in a beam of reflected light which splits into two parts. Two inaccurate angles produce four beams, and three produce six. If the angles could be made accurately, a larger reflecting unit would produce a proportionately larger illuminating beam and beam-spread; but the angles cannot be made perfect, and the resulting split in the light produces dark spots which are the same size as the inaccurate units. Therefore, appellees use a multiplicity of small units in an effort to produce an area from which the reflected light from one unit overlaps that of another, and on which the dark spot resulting from an inaccurately formed cube corner will be as small as possible. The lens mir-' ror button would be useless if it produced a perfect focus upon a correspondingly perfect mirror with perfect corrections for aberrations. Hence, it is manufactured within certain limits of tolerance to produce the desired spread of light. With the irregular cube faces to produce the spread, cube-cornered glass cannot be manufactured with sufficient accuracy to prevent dark spots in the field.
The assignments of error which we think are well taken are based upon invalidity for want of novelty, lack of invention, and failure to disclose the means which would enable one skilled in the art to produce the result. A statement of our conclusions with reference to these assignments will render it unnecessary to discuss the charge of infringement.
Appellees admitted of record below, and in the argument here, that both the lens mirror used by appellant and the triple reflecting units disclosed by the Stimson patent were old, 'and that it was the combination which they claimed .to be patentable. These admissions are in accord with the proof of appellant upon the subject of prior art; and, since the reflecting prism means of the patent and the lens mirror button used by appellant were devoid of novelty, the use of such old reflecting means in the old combination of sign characters and reflectors did not produce any new function or result, and was lacking in patentable novelty or invention.
Appellees rely upon a controlled and narrowly confined beam spread as a novel improvement upon all prior inventions in the art. Conceding that such a contribution would have been valuable, we do not find the means for producing the result disclosed by the claims of the patent. It is said that Stimson wanted a narrow spread to confine and concentrate the light in the useful field where the public traveling on the highway was going to view his sign; that he wanted to confine the beam spread so as to get a more brilliant illumination within a more limited field. If this was what he had in mind, he failed to describe the means of its accomplishment in either the claims or specifications. Therefore, he has not paid the price of patent protection. Beidler v. United States, 253 U.S. 447, 40 S.Ct. 564, 64 L.Ed. 1006; Permutit Co. v. Graver Corporation, 284 U.S. 52, 53, 60, 52 S.Ct. 53, 55, 76 L.Ed. 163.
In claims 2 and 3, a light source in front of the sign is mentioned. Nothing is said concerning the direction of the reflected light, except that it shall be to a selected field. These claims would be satisfied by a reflector which illuminated the selected field with light originating outside the field, which function neither the triple reflector nor the lens mirror button would perform. In claims 12 and 13, the reflection is to be “back in the general direction of” the light from a distant source. Here, again, there is no requirement that the light source be within the selected field. It cannot be said that these claims embrace light from any source. Should such an invention be perfected, it would not bear on the patent in suit, since the only feature that the two would have in common would be that when the source of light falling upon the latter device was within the selected field, it would be reflected in that general direction. To allow the patent in suit to cover this common feature would be to allow a patent upon a result, rather than upon an art, machine, manufacture, or composition.
It is well established that a mere result cannot be patented. General Electric Co. v. Sundh Electric Co. (C.C.A.) 251 F. 283; Hale Manufacturing Co. v. Hafleigh & Co. (C.C.A.) 52 F.(2d) 714. Likewise, the reflection of light from a distant source, or from a given source, into a restricted field is a mere function or result. Whether the means of producing this result would furnish a recognizable claim for patentability need not be considered by us, since the patent here in suit does not disclose the means, which, according to Stimson’s testimony, were necessary for a reflecting sign. He says: “I was after a more narrowly confined beam spread all the time.” He describes his attempt to secure this “by means of greater accuracy in the molded structure,” and claims to have worked out a sectional type of mold which could not be made in the average glass mold-making shop. From December, 1922, to March, 1923, he was working to confine the beam spread in order to get a more brilliant illumination. It cannot be claimed that the means were obvious to one skilled in the art, because the method of controlling the beam spread is the essence of the invention claimed. To say it was obvious to the ordinary workman is to say there was .no invention, only an aggregation of old elements. Stimson admits that a reflected beam with no spread is not within the patent, but he refused in his testimony • accurately to define a narrow beam, and he failed to teach the public both how to practice the art and how to avoid infringement. In a sentence, what the patentee declared in claims 2, 3, 12, and 13 to be his invention is clearly shown to have been anticipated by the prior art, and what appel-lees now assert to be the invention is not disclosed by the patent in suit. It follows that the claims relied upon to support the decree appealed from are invalid.
For the reasons given, the decree of the District Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_attyfee
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
H & J FOODS, INC., Plaintiff-Appellee, v. Gail REEDER, dba Nutrifoods Co., Defendant-Appellant.
No. 71-1669.
United States Court of Appeals, Ninth Circuit.
April 25, 1973.
Francis A. Utecht (argued), Fulwider, Patton, Rieber, Lee & Utecht, Long Beach, Cal., for defendant-appellant.
James W. Geriak (argued), James J. Short, Lyon & Lyon, Los Angeles, Cal., for plaintiff-appellee.
Before CHAMBERS, HAMLEY, and GOODWIN, Circuit Judges.
. Circuit Judge Hamley lias not participated in the within opinion, being temporarily disabled.
OPINION
CHAMBERS, Circuit Judge:
“Hunza” seems to be a word with some sales appeal when exploited in the rapidly growing health foods business.
A small operator, Floyd Hampson, who was using the name of Hunza for some of his products, registered the name as a trademark in the United States Patent Office in 1957. It was registered for: “Vitamin-Mineral Food Supplement, including Herbs and Grasses, in Powdered, Tablet and Tea Forms.” Hampson’s early advertising, before the health food business generally burgeoned, is marvelous. According to his claims, the Hunzas were a healthy little tribe of agrarians in the high mountains of Asia where the soil is especially rich and unique. Hampson had found himself a similar Eden, a farm near Cherry Creek hard by the little town of Duvall, Washington. There mud on the farm had the texture of hand cream. There Hunza grass was grown, but not allowed to mature. Its tender shoots were cut with a field chopper. Then it was idyllically processed by flash dehydration. One might remain lost in the puffery, except the great product, never touched by human hands, came down to reality with the postscript notation: “Does not contain alfalfa.”
Maybe Hampson was before his time (or maybe he just did not live in Southern California where one’s odd dreams can often be richly exploited), but he did not do well financially with his “great” product. Eventually in 1968 he sold his dreams and the trademark to Herman Jacobs, one of the owners of H & J Foods, Inc., for $500.00. Jacobs turned it over to the company. Tangibly, in addition to the copyright, there came along a lot of Hampson’s unused labels.
But somehow, someway, one Rowe, the predecessor of Reeder, the defendant, operating as Nutrifoods Co. in Southern California, became aware of the legend of Hunza and he started producing health foods, labelling them Hunza®. The printer’s bug ® is the historical symbol for a registered trademark. Neither Rowe nor Reeder ever attempted to register Hunza as a trademark. (H & J is also a Southern California food producer.)
Within a few months after the purchase, H & J had sued Reeder, seeking an injunction and an accounting of profits. The first count was for trademark infringement. The second was a pendent count for unfair competition. H & J Foods, Inc., received a judgment against Reeder of $26,519.07 plus interest and heavy costs, which included attorney fees of $14,040.00. The attorney fees are allowable under California’s statutory law on unfair competition. Fleischmann Distilling Corp. v. Maier Brewing Company, 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Friend v. H. A. Friend & Co., 416 F.2d 526 (9th Cir. 1969).
On this appeal, the whole result is attacked. We affirm the granting of the injunction, but hold that the assignment carried no right to profits before the date of the assignment. Further, this result will necessarily require a heavy reduction in the attorney fees allowed. Also, some adjustment will have to be made in the amount assessed as the cost of the accounting.
Reeder does not challenge the validity of Hampson’s registration of “Hunza.” He does, however, challenge the assignment of the mark to Jacobs. Most of his objections are to the district court’s findings of fact.
The claim that Reeder presses most vigorously is that the assignment was invalid because it was “in gross,” and an assignment apart from the business with which the mark has been associated. See Mister Donut of America v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969), and 15 U.S.C. § 1060.
While Hampson did not transfer much except the trifling amount of goodwill along with his trademark, the reason was that he had little else to transfer in the way of tangible assets related to “Hunza.” The district court found that “Herman Jacobs contacted Hampson and by assignment August 7, 1968, purchased from Hampson for $500 all right, title and interest in and to the trademark ‘Hunza,’ including the right to sue for past infringements, together with the goodwill of the business symbolized and appurtenant to the mark, Registration No. 644,085, and a quantity of ‘Hunza’ labels, advertising news releases, and promotional materials.”
Except as to past infringement, we believe the court’s finding is supported by the evidence, and is therefore proper. Hampson gave up the right to use the mark, “Hunza,” and Jacobs acquired all of Hampson’s related tangible assets of any conceivable value. In this case, this was sufficient. Cf. Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F. 2d 675 (C.C.P.A.1971).
Reeder further contends that H & J has used the “Hunza” mark on products so dissimilar to the registration specifications that the mark is invalid. Although we might have found differently, the district court found substantial similarity, and we do not believe that finding is clearly erroneous.
On H & J’s pendent claim arising under California’s unfair competition law, the court found that the public was likely to be deceived by Reeder’s use of the mark “Hunza,” and the bug,®. We express no opinion on the validity of the finding to the extent it involves use of ®. The finding of deception based on use of “Hunza” alone is sufficient, and it is supported by the evidence. See Payne v. United California Bank, 23 Cal.App.3d 850, 100 Cal.Rptr. 672 (1st Dist.1972). A specific finding of “palming off” was not necessary.
Much of the award stems from damages for infringement by Reeder prior to the assignment from Hampson to Jacobs. Such pre-assignment damages are disfavored, and they are allowed only when the right to sue is clearly spelled out in a valid assignment. George W. Luft Co., Inc., v. Zande Cosmetic Co., Inc., 142 F.2d 536 (2d Cir. 1944). Here, the only evidence of Hampson’s intent to assign the right to sue for past infringement is the following statement of Herman Jacobs. “[Hampson] also gave a remark. He said, ‘If you get the mark, you can sue that guy in Tulsa, Oklahoma, Akin [a former partner of Reeder], because he is using the mark illegally.’ ” We do not pass on the question whether this parol evidence was properly admitted. We do feel, however, this kind of testimony is insufficient to entitle H & J to pick up pre-assignment damages. The language, if admissible, is not express enough. This conclusion will have a heavy impact on the amount of damages, and as above indicated, the district court must reconsider on remand the amount of attorneys’ fees and the amount of costs.
The district court was not clearly erroneous in its implicit rejection of Reed-er’s “clean hands” argument.
As an epilogue, we note that probably counsel would have served their clients just as well without overridiculing each others’ briefs. The briefs, perchance, were written for their respective clients, not us.
The judgment is affirmed as to the granting of the injunction. Otherwise, the judgment is remanded for proceedings consistent with this opinion.
Each side will bear its own costs of the appeal.
. United States Patent Office Trademark Registration No. 644,085.
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_const1
|
114
|
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.
INDEPENDENT SERVICE CORPORATION v. TOUSANT et al., Members of Industrial Accident Board.
No. 4034.
Circuit Court of Appeals, First Circuit.
May 4, 1945.
Edward C. Park, of Boston, Mass., and Philip F. Grogan, of Watertown, Mass. (Withington, Cross, Park & Mc-Gann, of Boston, Mass., of counsel), for appellant.
William Gardner Perrin, Asst. Atty. Gen., of Massachusetts (Clarence A. Barnes, Atty. Gen., of Massachusetts, of counsel), for appellees.
Maurice M. Goldman, of Boston, Mass., for Massachusetts State Federation of Labor, amicus curias.
Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.
MAHONEY, Circuit Judge.
This action involves the constitutionality of a Massachusetts statute. It was brought to enjoin the enforcement of § 25D of the Workmen’s Compensation Act, Chapter ,152, Gen. Laws of Massachusetts (Ter. Ed.), as amended by St. 1943, c. 529, § 7, which provides:
“No self-insurer or attorney acting in its behalf shall engage a service company or like organization to investigate, adjust, or settle claims under this chapter or to represent it in any matter before the department. Any violation of this section shall constitute reasonable cause for revocation of the license of a self-insurer under section twenty-five A of this chapter.”
Since November 15, 1943, the effective date of § 25D, the plaintiff has refrained from investigating, adjusting or settling claims for self-insurers, and the Industrial Accident Board has made it clear that it would revoke the license of any self-insurer who employed a service company to engage in such activities under the Act. As a result the plaintiff has lost contracts with self-insurers which would net it $2000 a year. It alleges that § 25D deprives it of liberty and property in violation of the Fourteenth Amendment.
The plaintiff, a Massachusetts corporation, was organized in 1936 as a “service company” to do safety engineering and statistical work. It investigated industrial accidents and advised employers as to methods and appliances designed to prevent such accidents. Among its clients were employers electing not to insure under the Workmen’s Compensation Act, insurance companies, and clients in public liability cases and casualty losses. Its contracts with non-insuring employers provided for the investigating of industrial accidents and the adjusting and settling of those claims. Those contracts alone fall within the prohibition of § 25D. There is no question but that the plaintiff may continue to do safety engineering and statistical work and to investigate industrial accidents for the purpose of preventing future accidents and arranging for medical care required by past accidents.
As originally enacted in 1911, the Massachusetts Workmen’s Compensation Act, as those adopted in other states about that time, was an elective compensation insurance law. In theory it was compulsory upon no one, neither employer, employee, nor insurer. Though elective in form it exerted pressure upon employers to carry compensation insurance by depriving them of certain of their common law defenses in actions brought by employees for personal injury. Since the Act was elective and not compulsory employers could refuse to take out workmen’s compensation insurance. Those employers thereby avoided the cost of insurance premiums which some regarded as too high in relation to the risks involved but retained their common law liability. Some employers who were willing to provide compensation benefits to their employees similar to those they would receive from an insurer under the Act, but directly out of the employers’ funds, developed substitute plans. Under these plans the employer carrying his own risk either provided for the investigating, adjusting and settling of claims within his own organization or employed a service company to do it for him. To insure savings the plans provided for the purchase of some form of stop-loss insurance which would indemnify the employer for any losses or claims paid which exceed a certain percentage of the amount he would have to pay for ordinary workmen’s compensation insurance. The figure fixed is usually 75% of that premium, and thereby the employer immunizes himself against his common law liability. Thus the employer setting up a substitute plan is in a position to limit his maximum cost to that of workmen’s compensation under the Act, and to the extent that the total costs of the service company, losses on claims paid, and the stop-loss insurance premium is less than the normal compensation insurance premium he makes savings and reduces the costs of workmen’s compensation. For example, if we take '100% as the cost of the normal premium the common allocation of costs under the substitute plan may be illustrated as follows: 10% for the service company, 15% for the stop-loss insurance premium, and 75% for the payment of losses. As the latter item is the largest the employer looks to it for savings, and to the extent that the service company keeps the amount of claims paid below the maximum figure not covered by stop-loss insurance the employer makes savings and the service company function is economically justified.
In 1943 the legislature enacted Chapter 529 adding § 25A through § 25D to the Act. This chapter in effect converts the Act from an elective compensation insurance law into a compulsory one by making the provision of workmen’s compensation mandatory with practically all employers. The employer, however, has an option in meeting the costs of compensation either of taking out insurance or acting as his own insurer. § 25A through § 25 C provide for the compulsory payment of compensation by insurance unless the employer elects to become a “self-insurer” under the Act. This he may do by obtaining a license from the Industrial Accident Board and complying with certain requirements respecting the furnishing of security for the payment of compensation to injured employees. The effect of this chapter with respect to the former non-insuring clientele of the plaintiff service company is to bring them and their employees within coverage of the Act but does not require such employers to purchase workmen’s compensation insurance. They may continue to finance the payment of workmen’s compensation out of their own funds, but § 25D precludes their continued reliance on service companies- such as the plaintiff in the investigating, adjusting and settling of claims.
The question to be decided is whether the provisions of § 25D prohibiting contracts between self-insurers and service companies is a reasonable exercise of police power. The plaintiff argues that the statute is arbitrary and discriminatory. It takes, the position that it was pursuing a lawful calling and argues that there is no rational ground for believing that it was reasonably necessary to prohibit self-insurers from employing service companies to accomplish the purposes of the Act as regulation would serve.
In an exhaustive opinion, the lower court considered the plaintiff’s arguments. Independent Service Corporation v. Tousant, D. C., 56 F.Supp. 75. Approaching the question from the standpoint of legislative power over employers who do not have policies of insurance complying with the Act, it noted that it is now well settled that the State has power to create a compulsory insurance system to secure adequate compensation to workmen for industrial accidents ; that instead of exercising that power to the full, the State may choose to allow the employer to remain outside the coverage of the Act providing that he gives up certain relevant rights; that since the legislature can deprive the non-insuring employer of his right to protect himself from liability by securing insurance which does not provide for the payment of compensation benefits “It is no great step from depriving an employer of his right to insure as he pleases to depriving him of his right to use a service company to investigate, adjust or settle claims of employees under the Workmen’s Compensation Act.” [56 F.Supp. 80]. The court below found some authorities who regarded service companies as proper and useful adjuncts to the administration of workmen’s compensation and others who regarded them as detrimental to the interest of employees and the system as a whole. Of the latter it said:
“They assert that a service company plan can survive only if the employer pays out less in settlements than he would have to pay as a premium to an insurance company; that the service company is therefore under an economic inducement to pay workmen low amounts as compensation for their injuries; that this economic inducement is not counterbalanced as in the case of lawyers by the professional discipline of the bar, or as in the case of insurance companies by the supervision of public authorities, or as in the case of settlement departments of the employer’s own business by neighborly sympathy and longstanding ties of mutual interest; and that the low payments under a service company plan not only prevent employees from getting uniform and hence fair compensation but also induce employers either not to join or to withdraw from a broad insurance scheme which would diversify and spread risks and would improve the administration and effectiveness of the Workmen’s Compensation Act.”
The court was of the opinion that m the light of the legislative materials and professional authorities before it the legislature could reasonably conclude that the use of service companies by self-insurers precluded workmen from receiving adequate compensation under the Act. Therefore it held thht the legislature “was not limited to an enactment which merely regulated the use of service companies by self-insurers; it had the power absolutely to prohibit their use,” citing Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Powell v. Pennsylvania, 127 U.S. 678, 685, 686, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Cf. United States v. Carolene Products, 304 U.S. 144, 151, 58 S.Ct. 778, 82 L.Ed. 1234.
The plaintiff contends that the lower court erred in failing to distinguish between self-insurers under a complusory act and non-insurers under an elective act and asserts that the only criticism of service companies before the legislature was directed at their use by non-insurers and is without any relevancy whatsoever with respect to their use by self-insurers under a compulsory act. The plaintiff further contends that the enactment of § 25D rests on the assumption on the part of the legislature that adjustments made by service companies for self-insurers qualified as such under § 25A of the Act would not be subject to the Act and to the supervision of the Industrial Accident Board. We see no merit in these contentions.
In our opinion the analysis of the District Court was correct. It is apparent from legislative history prior to November 15, 1943, the effective date of § 25D, that the use of substitute compensation plans which combined the use of service companies in the investigating, adjusting and settling of claims with stop-loss insurance putting a ceiling upon employers’ losses had been receiving considerable attention from the legislature. Furthermore we are satisfied that the criticism of service companies was not directed solely at their use by non-insurers outside the Act. In 1935 § 54A was added voiding stop-loss insurance policies which did not provide for the payment of compensation under the Act, and it was well understood that if this amendment had succeeded in forcing employers to carry workmen’s compensation insurance the business of service companies to that extent would have been circumscribed. In 1938 the Attorney General acted on complaints of abuses being practised by service companies, and in his report for the year ending November 30, 1938, Public Document No. 12, pp. 8, 9, it was stated that to sell their services service companies promise that the total amount paid to employees will not exceed the amount of premiums the employer would otherwise have to pay if he took out ordinary workmen’s compensation insurance; that they try to get injured workers to sign away their rights for the smallest amount possible, and that workers are generally forced to settle at very low figures, for if they sue at common law they risk losing their positions since the employer must meet adverse judgments out of his own funds and not an insurance company. The legislature had this report before it when it was considering the enactment of § 25D. It also had before it an article in 18 Boston University Law Review 1 (1938), which suggests that the history of the Massachusetts Workmen’s Compensation Act from 1911 until the depression began in 1929 was one of gradual expansion of the number of workmen covered, and that after 1929 the trend was reversed with employers in an effort to reduce expenses withdrawing from the Act to escape the cost of premiums.
In 1938 the legislature set up a Special Recess Commission for the purpose of investigating workmen’s compensation insurance. The report of that commission contained a majority and minority report on the subject of self-insurance revealing a substantial difference of opinion with respect to service companies. The majority thought that substitute compensation plans provided that service companies “would undertake to keep down the claims for injury in a given plant to a minimum through supervision of safety appliances and efficient and prompt attention to all injuries.” It cited testimony that some employers acting outside the Act dealt liberally with employees and paid benefits substantially the same as those provided under the Act and that both employers and employees seemed satisfied. It merely acknowledged the assertion “that costs were kept down through pressure upon employees not to assert claims, and failure to pay benefits as great as those provided for in the Act.” The minority report was far more critical. It provided in part: “When a workman was injured and there was negligence these substitute scheme promoters would then settle with the workers as cheaply as possible under the common law. If there were no negligence, as in 90% of the cases, then they would pay the worker practically nothing, and in many cases nothing, for the loss of a leg or an eye or an arm. Section 54A of the compensation act was passed to stop such substitute schemes. But it did not succeed in doing so. These substitute scheme promoters, therefore, are anxious to have a provision put in the law so that there may be self-insurance, that is, an employer who could pay his workmen directly, and the people who were formerly handling substitute schemes would then be handling the cases for self-insurers.” The period between 1938 and 1943 saw the introduction of numerous bills designed to legalize service companies. None of them became law.
In the light of legislative history and the materials on hand when the legislature considered § 25D, we are satisfied that there was a reasonable difference of opinion as to the place of the service company in the scheme of compulsory workmen’s compensation, and that the legislature could reasonably conclude that the economic pressure upon service companies to keep compensation payments down was so pressing as to constitute them an appropriate object of prohibition when considered in the light of an established public policy that workmen should receive adequate compensation for injuries. Therefore we are not disposed to upset the' conclusion of the legislature that there was something inherently harmful to the interest of workmen in the service company function.
This disposes of the contention of the plaintiff that it was pursuing a lawful calling, the abuse of which it concedes is subject to regulation. It also disposes of the arguments that since the Act is now compulsory and all compensation claims are subject to supervision by the Industrial Accident Board, the Board is in a position- to control abuses; and that if further regulation were necessary the legislature could set up direct controls over service companies and subject them to licensing requirements. Irrespective of the theoretical validity of the arguments they do not necessarily meet the actual problem. From the testimony taken at the trial it appears that more than 95% of all workmen’s compensation claims even under the amended Act are disposed of without close supervision by the Industrial Accident Board. Apparently it was the judgment of the legislature that the economic pressure upon service companies to keep the payments of losses down could not be restrained through regulation by the Industrial Accident Board since the latter dealt primarily with flagrant abuses and would not be a satisfactory control in the great mass of compensation cases.
Nor does the fact that insurance companies apparently may employ service companies without restriction necessarily indicate that § 25D is capricious. Insurance companies are subject to close and complete supervision. Moreover, the profit motive and fear of losses are less apparent. The insurance company may be prepared to pay compensation to the employees of one employer which exceeds the particular premium charged and make up its loss on other risks where compensation payments are less than premiums. It is also to be noted that premium rates are not fixed but adjustable according to loss experience of the risk.
It is clear that the State may require contributions to a state fund as the exclusive method of making payments required by a Workmen’s Compensation Act, Mountain Timber Co. v. Washington, supra; and that the State as a condition to permitting an employer to make such payments as a self-insurer, may prohibit him from insuring with a private company by requiring him either to contribute to a state fund or to act as his own insurer without the security of private insurance, Thornton v. Duffy, 254 U.S. 361, 41 S.Ct. 137, 65 L.Ed. 304. The present act gives the employer the option of taking out ordinary workmen’s compensation insurance or of acting as his own insurer. As a condition to obtaining a license as a self-insurer the Act provides that such self-insurer must not employ a service company. The plaintiff’s final contention is that the legislature has forbidden employers to contract with service companies for the purpose of ultimately driving them to provide for compensation benefits through conventional insurance and that in so doing it has gone too far in abridging freedom of contract. It distinguishes Mountain Timber Co. v. Washington, supra, and Thornton v. Duffy, supra, as dealing with state funds and asserts that the effect of the statute here is to require all employers to insure with private companies. We do not agree.
We have already adverted to materials before the legislature indicating that § 25D was enacted for reasons quite independent of those urged by the plaintiff. Nor are we of the opinion that the practical operation and effect of the statute will exert an unreasonable pressure upon employers, to insure with private companies. The plaintiff assumes that service companies are the sine qua non of self-insurance. Yet it will be conceded that the larger employer who maintains his own service department never has to turn to the service company for the investigating, adjusting and settling of claims against him. Nor are we satisfied that the smaller employer who cannot maintain his own service department is foreclosed from acting as a self-insurer. In this connection the decision of the Supreme Judicial Court in Friend Brothers, Inc., v. Seaboard Surety Co., 316 Mass. 639, 56 N.E.2d 6, 9, 153 A.L.R. 962, is to be noted. In that case the court held that § 54A of the Act which made void stop-loss policies taken out by non-insurers was not applicable to such policies issued to self-insurers under the Act and said:
“We do not believe that this statute,, which, as pointed out in Alecks’ case, supra, was for the purpose of compelling employers to insure under the act, was intended, after they had insured their employees by becoming self-insurers, to make it difficult for them to do so by denying them the right to reinsure. Such a construction would impute to the Legislature an intent to discourage self-insurance and to weaken the financial strength of the self-insurer who seeks by reinsurance to increase it for the benefit of himself and his employees. Where a statute such as St.1943, c. 529, makes it compulsory for one to insure his employees and gives him the choice of either insuring with an insurer or acting as a self-insurer, it would take clear and unequivocal language to convince us that one of these methods was to be regarded with less favor than the other. Such language is not to be found either in c. 529 or in section 54A.”
Section 25D was a part of c. 529. It would also seem therefore that the Supreme Judicial Court was not of the opinion that this section was enacted for the purpose of forcing employers to insure with private companies, or that that would be its only effect.
The judgment of the District Court is affirmed with costs to the appellees in this court.
New York Central R. v. White, 243 Ü.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas. 1917D, 642; Thornton v. Duffy, 254 U. S. 361, 41 S.Ct. 137, 65 L.Ed. 304.
Such as his common law defenses. New York Central R. v. White, supra; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Opinion of the Justices, 309 Mass. 571, 595, 596, 34 N.E.2d 527.
Alecks’ ease, 301 Mass. 403, 17 N.E.2d 173; Opinion of the Justices, 309 Mass. 596, 34 N.E.2d 527.
St.1935, c. 425. In Aleck’s Case, supra, the Supreme Judicial Court states that the reasons for § 54A are plain and points out that the willingness of some employers to risk the enlarged liability of the non-insurer to avoid paying premiums would increase if they could obtain at smaller expense liability insurance against the payment of damages in common law actions; and that “Thus the pressure which was intended to drive all employers into insuring under the Workmen’s Compensation Act would be removed, and the public policy of the Commonwealth that all employers should come under that act would fail.” [301 Mass. 403, 17 N.E.2d 175.]
Commonwealth of Massachusetts, Senate Report No. 456, February, 1939, Report of the Special Recess Commission appointed for the purpose of investigating Workmen’s Compensation, ’Silicosis, and Hazardous Employments, pp. 8-10, 25, 26.
House Bill No. 1765 of 1941 providing for legalization of service companies; House Bill No. 2038 of 1941 which would repeal section 54A and permit the issuance of stop-loss insurance policies; House Bills No. 2818 of 1941 and No. 1030 oí 1943 permitting stop-loss insurance; a substitute proposal identified as House No. 0000, May 4, 1943, expressly legalizing service companies was considered with open hearings by the Committee which reported out the bill that upon enactment became § 25D.
Tie plaintiff cites the decision in Friend Brothers, Inc. v. Seaboard Surety Co., supra, as showing that all sound reasons for opposing the use of service companies by employers had vanished with the amendment to the Act, making provisions for compensation compulsory but offering employers an option to become self-insurers under the Act.
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_numappel
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of 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.
METROPOLITAN LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. Werner H. KRAMARSKY, As Commissioner of the New York State Division of Human Rights, the New York State Division of Human Rights, and the New York State Human Rights Appeal Board, Defendants-Appellants.
No. 19, Docket 80-7185.
United States Court of Appeals, Second Circuit.
Originally Argued Sept. 25, 1980.
Decided May 11, 1981.
Petition for Rehearing June 9, 1981.
Decided Nov. 24, 1981.
Remanded from the United States Supreme Court June 24, 1983.
Decided Dec. 27, 1983.
Ann Thacher Anderson, Gen. Counsel, State Div. of Human Rights, New York City, for defendants-appellants.
Jeffrey A. Mishkin, New York City (Jeffrey D. Fields, Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for plaintiff-appellee.
Before KEARSE and CARDAMONE, Circuit Judges, and TENNEY, District Judge.
Honorable Charles H. Tenney, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation.
PER CURIAM:
For the reasons stated today in our opinion in Delta Air Lines, Inc. v. Kramarsky, 725 F.2d 146, on remand from the United States Supreme Court, Shaw v. Delta Air Lines, Inc., — U.S. —, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), we affirm the judgment of the district court enjoining enforcement of New York’s Human Rights Law, N.Y.Exec.Law § 296 (McKinney 1972 & Supp. 1980-81).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_crmproc2
|
8
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited.
GOVERNMENT OF the VIRGIN ISLANDS v. Angel RUIZ, Appellant in No. 73-1319. GOVERNMENT OF the VIRGIN ISLANDS v. Carlos CORCINO, Appellant in No. 73-1318.
Nos. 73-1318, 73-1319.
United States Court of Appeals, Third Circuit.
Argued Dec. 4, 1973.
Decided March 5, 1974.
Robert A. Ellison, Christiansted, St. Croix, V. I., for appellant in no. 73-1318.
David V. O’Brien, Merwin, Alexander & O’Brien, Christiansted, St. Croix, V. I., for appellant in no. 73-1319.
Julio A. Brady, U. S. Atty., Ishmael A. Meyers and John Wilbur, Asst. U. S. Attys., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before SEITZ, Chief Judge, and MARIS and GIBBONS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Appellants Ruiz and Corcino appeal from a judgment of sentence imposed by the District Court of the Virgin Islands. Ruiz and Corcino are two of four defendants named in an information charging murder, 14 V.I.C. § 922(a)(2) and robbery 14 V.I.C. § 1861 of one Lawrence Angus. The other two defendants named are Rafael San Kitts and Angel Ventura. Prior to the trial Ventura apparently became a fugitive. San Kitts pleaded guilty to the robbery count and testified for the government at the trial of Ruiz and Corcino. He implicated both in the robbery and murder. The government also introduced the sworn written statement of Ruiz, from which references to his co-defendants were deleted. Ruiz’ statement is substantially consistent with San Kitts’ testimony. Both Ruiz and Corcino took the stand and denied participation. Ruiz repudiated his statement and Cor-cino offered alibi testimony. The jury found both guilty on both counts and each was sentenced to life imprisonment for murder and fifteen years for robbery.
On this appeal Corcino contends:
(1) that his trial should have been severed from that of Ruiz because he was prejudiced by the admission of Ruiz’ statement. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
(2) that the trial court improperly limited the scope of cross-examination of San Kitts.
Both defendants contend:
(3) that they were prejudiced by the government’s failure to make full disclosure of exculpatory materials pursuant to Rule 16, Fed. R.Crim.P. and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
(4) that the trial court erred in refusing to admit into evidence a toxicological report on the blood and urine of the victim.
We will consider these contentions seri-atim.
1. THE SEVERANCE MOTION
Each defendant relying on Bruton v. United States, supra, moved before trial for a severance on the ground that the confession of one or more of the co-defendants would tend to incriminate him. At that stage the trial court, weighing the competing considerations favoring joinder under Rule 8 over severance under Rule 14, Fed.R.Crim.P., tentatively denied the motions for severance on condition that any statements, before they are admitted, be edited so that they refer only to the activity of the confessor and do not mention the activities of any co-defendant, and so that the contents be admitted by testimony and with the writing itself excluded. See United States v. Rickey, 457 F.2d 1027, 1030 (3d Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972); United States v. Lipowitz, 407 F.2d 597, 602 (3d Cir.), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969). The trial court also withheld final decision on Corcino’s motion for severance to be sure that in light of the evidence received at the trial there would be no tacit reference to him. At the trial the government produced a court reporter who on May 19, 1972 took a sworn deposition from Ruiz, the transcript of which had been edited in accordance with the court’s pre-trial ruling. Corcino’s counsel renewed his Bruton objection. (Tr. at 93). However, the court ruled that having reviewed the statement for conformity with the pretrial ruling, he would permit it to be read as edited with the understanding that he would entertain specific objections during the course of the reading. (Tr. at 94). The questions and answers were then read to the jury. They implicate Ruiz and other unnamed assailants in the robbery-murder. There is nothing in the statement as read identifying Corcino as one of the perpetrators. Thereafter San Kitts testified. He identified the perpetrators, besides himself, as Ruiz, Corcino and Ventura. He was extensively cross-examined both by Ruiz’ and by Corcino’s attorneys. After the government rested, Ruiz took the stand. He categorically denied participation and repudiated the May 19, 1972 statement, claiming it was the result of suggestion and coercion by the police. Ruiz was cross-examined by the prosecutor about the fact that in his May 19, 1972 statement he had implicated San Kitts and Corcino. (Tr. at 236). Corei-no’s attorney at this point made a motion for a mistrial. The court ruled:
“It is on the basis of Bruton that I deny the motion for a mistrial and also at this time, since Ruiz has taken the stand, deny your motion for a severance. You will recall I had reserved it. I reserved it only until such time as I would know whether Ruiz would take the stand. Now that he has taken the stand I finalize my decision that there won’t be a severance and I deny any mistrial because you have a right to have confrontation.” (Tr. at 241).
Thereafter the prosecutor’s cross-examination of Ruiz with respect to the May 19, 1972 statement continued until Ruiz’ attorney stated that he had no objection to the whole transcript being admitted. Corcino’s attorney stated:
“Defendant Corcino has no objection to its introduction, Your Honor.” (Tr. at 246).
It was admitted as exhibit G-6. Corcino’s attorney did not cross-examine Ruiz. He had the opportunity to do so. On this record we see no Bruton violation. See Wade v. Yeager, 415 F.2d 570 (3d Cir.), cert. denied, 396 U.S. 974, 90 S.Ct. 466, 24 L.Ed.2d 443 (1969). The severance motion was properly denied.
2. THE SCOPE OF CROSS-EXAMINATION OF SAN KITTS
San Kitts’ direct testimony implicating Ruiz and Corcino appears in eleven pages of the transcript. He was cross-examined for thirty pages by Ruiz’ attorney about discrepancies between his testimony and the several statements he had made to the police, and about his possible motives for testifying favorably for the government. He was then cross-examined by Corcino’s attorney for eight pages about discrepancies between his testimony and his prior statements and about his memory and his motives for testifying. On redirect the prosecutor, referring to a statement that had been used in cross-examination, developed that some of the discrepancies had resulted from threats by a defendant, asked certain clarifying questions, and concluded :
“Q. Assuming that there are some differences in the statements that you made, is it true or not that Angel Ruiz and Carlos Corcino were with you when Mr. Lawrence Angus was murdered and robbed ?
A. Yes, sir.” (Tr. at 172).
At that point, without objection from Corcino, the four statements given by San Kitts, about which he had already been extensively cross-examined, were received in evidence. (Tr. at 174). On recross, Ruiz’ attorney asked:
“Q. Will you tell the jury, the Court, the defendants, the United States Attorney and myself, please, Mr. San Kitts, where you lied in all of these statements?
[The Prosecutor]: Objection, Your Honor.
THE COURT: I will sustain the objection. We cannot go through all those statements again.” (Tr. at 175).
******
[Ruiz’ Attorney]: “I presume your Honor will give me the opportunity, then, to discuss with him the threats that he alleges were made against him, which was brought out on redirect.
THE COURT: Yes, you may.” (Tr. at 176).
Five pages of cross-examination on that subject follow. Corcino contends that the limitation of Ruiz’ cross-examination reflected in the quoted ruling prejudiced him. His attorney made no recross-examination, no offer of proof, and no protest with respect to the ruling. Aside from these obstacles to consideration of the ruling on his behalf, the ruling was, on the record as it stood at that point, a sound exercise of the court’s discretion in controlling the scope of cross-examination on credibility issues.
3. DISCLOSURE OF EXCULPATORY MATERIALS
The defendants contend that the government’s compliance with an apparently informal arrangement for production of materials pursuant to Rule 16, Fed.R.Crim.P. and Brady v. Maryland was grudging, tardy, and prejudicial. Turning to the specifics:
A. A knife obtained from San Kitts and the victim’s shirt were sent by the Virgin Islands police to the F.B.I. laboratory. The F.B.I. report, suggesting that the knife could not be related to the holes in the shirt (the victim died of multiple stab wounds), was produced at the trial and was received in evidence. The court made no findings as to the cause of the late disclosure. None was required since no prejudice occurred.
B. The knife referred to in the report was not produced prior to trial. It was produced at trial, introduced into evidence, and used extensively in the cross-examination of the medical expert who testified as to cause of death. It was referred to in San Kitts’ statement, which had been produced at pre-trial. Assuming tardy production, there was no prejudice.
C. The victim’s shirt was not produced apparently because the prosecutor never got it back from the F.B.I. But the discrepancies between the size of San Kitts’ knife, the wounds, and the cuts in the shirt as described in the F. B.I. report, were extensively explored. Again there was no prejudice.
D. A toxicological report as to the blood and urine of the victim were produced at the trial and fully examined by the defense attorneys. As will be seen hereafter, its exclusion was not prejudicial. No prejudice appears from its late production since it was in any event properly excluded.
E. Statements of San Kitts inconsistent with his testimony were produced at the trial. The defendants used them extensively in his cross-examination. They contend the statements should have been disclosed sooner. This contention is unsound. 18 U.S.C. § 3500(b). But assuming there was some obligation to make disclosure sooner, the extensive use made of the statements and their actual receipt in evidence negates any possibility of prejudice.
F. A tape recording of a statement by Corcino was disclosed at the pre-trial hearing. The prosecutor told the defense attorneys it was unusable. They neither listened to it nor interviewed the person in whose presence it was made. After Corcino testified, that person testified in rebuttal as to his recollection of Corcino’s testimony. There was no concealment, no possible surprise, and no prejudice.
G. One pretrial statement of Ruiz was not disclosed until after he took the stand. Withholding this statement was in clear violation of Rule 16(a)(1) since by informal agreement all Rule 16 materials were to be produced. The prosecutor’s reason for withholding the statement was that he believed it was taken without appropriate Miranda warnings, and that it would not be admissible. That reason is insufficient, since under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the statement could be used for impeachment purposes if the defendant took the stand. Thus the defendant’s attorney was entitled to be informed of it pursuant to his Rule 16(a)(1) motion. Its late production had the potential for creating a trap for a possibly forgetful defendant. We disapprove of the practice of withholding any statement by the defendant, admissible or not, when a Rule 16(a)(1) motion has been made. In this case, however, the trial court appreciated the problem presented by the late production and ruled that the undisclosed statement could not be used for impeachment purposes pursuant to Harris v. New York, supra. This ruling precluded any prejudice.
As to each of the items about which the defendants complain of late production, on this record there was no possible prejudice. But we take the occasion to suggest that a more meticulous attention to the government’s obligations under Rule 16 and Brady v. Maryland, supra, is highly desirable. We have no reason to believe that the tardy disclosures in this case were the result of any deliberate policy of concealment. An affirmative policy of prompt compliance would, however, avoid the risk of needlessly causing a mistrial or a reversal.
4. ADMISSIBILITY OF THE TOXICOLOGICAL REPORT
The government’s first witness, Burgos, established that the victim Angus was drinking in a bar from 10:00 p. m. until at least 3:00 a. m. and was “Well, a little high.” (Tr. at 32). Angus was murdered some time between 3:00 a. m. and 6:25 a. m., and on May 3, 1972, the police discovered his body near his car beside the road. Dr. Glenn, a pathologist who performed the autopsy, found thirteen stab wounds and multiple contusions or bruises, abrasions or scratches and lacerations of the face and scalp, abrasions of the left elbow, abrasions of the right lower leg, and a total depressive skull fracture. He testified that the major injuries were stab wounds which penetrated the heart and the aorta. His pathological report was admitted in evidence at the defendants’ request, and was used in examining Glenn in an attempt to show that San Kitts’ knife could not have caused the wounds. This attempt was not particularly successful. Ruiz’ attorney, referring to the pathological report said to the court:
“There is another item here and that is that in the state that Mr. Angus was that he was able to drive the car to the location at which he was murdered. The doctor conveniently left out additional diagnosis, which is in here, which is alcoholic intoxication, including samples. And the samples are incredible, 0.15 alcohol in his blood, 0.2 alcohol by weight in his urine.” (Tr. at 74).
The significance of this statement is that San Kitts testified, and Ruiz’ statement admitted that the defendants had followed Angus’ car, pulled ahead of it, and forced him to stop at the spot where he was killed. Arguably, if he was too intoxicated to drive, San Kitts and Ruiz were lying.
Attached to the pathologist’s report was a toxicological report on the victim’s blood and urine, prepared from samples sent to Puerto Rico by Dr. Glenn. The government did not object to the admissibility of the pathologist’s report, but did object to the toxicological report because the person who prepared it was not present. The court sustained this objection. Dr. Glenn was then cross-examined as follows:
“Q. Dr. in you report the list is pathological diagnosis, is that correct?
A. Yes.
Q. In that you have indicated on direct examination certain of the things that occurred that you diagnosed as causes of death, is that correct?
A. Yes.
Q. Would you read one of those which you did not read? What is the last item listed under pathological diagnoses ?
A. I have acute alcoholic intoxication with a question mark after it.
Q. Will you describe what it is, Doctor ?
A. Well, the reason I put that in, what we call our gross examination, is because during the autopsy the tissue of the body had a heavy alcoholic aroma. You can’t go by your notes to make a diagnosis of acute alcoholism or chronic alcoholism but you suspect. So I put that in there to indicate my suspicion of chronic alcoholism and a question mark after it to indicate it would be verified by a toxicological examination.” (Tr. at 78-79). Since Dr. Glenn had not performed the toxicological tests he could not say of his own knowledge what was the alcoholic level in the decedent’s blood. A day later, after Dr. Glenn had been excused both attorneys made an offer of proof with respect to the toxicological report.
“The admission of this report is crucial to the defense because in particular the toxicological report indicates certain matters in the blood, rather, correction, the urine of the deceased which raise a number of questions about his whereabouts from the last time he was seen alive from the time he was killed.” (Tr. at 252).
The government objected that it would be deprived of the opportunity to examine the doctor who prepared the toxicological report. The court sustained the objection. (Tr. at 255). No request was made for a continuance so that a witness might be produced who could authenticate the contents of the report.
The defendants contend that the report was admissible pursuant to 28 U.S. C. § 1732. We need not address that question, for even if we were to hold that the report was admissible without the presence of the toxicologist who made the tests we would and do find that their exclusion was not in the circumstances of this case prejudicial. The evidence already had the victim afloat in a sea of alcoholic beverages. At most, the report is cumulative. There is no claim that it would have suggested a cause of death other than stab wounds. If the alcoholic state of the deceased suggests that these wounds were inflicted at a different place and by different persons than San Kitts testified and Ruiz admitted, a remote suggestion at best, that alcoholic state was sufficiently established by Dr. Glenn’s testimony.
CONCLUSION
We find no error warranting a new trial for either defendant. The judgment of the district court will be affirmed.
Question: What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_counsel
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" 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".
SAFECO INSURANCE COMPANY OF AMERICA, Appellee, v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY, Appellant.
No. 85-1936.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1986.
Decided Feb. 28, 1986.
Gary B. Mims (Brault, Palmer, Grove & Zimmerman, Fairfax, Va., on brief), for appellant.
Mary McGowan (Joseph P. Dyer, Siciliano, Ellis, Dyer & Boccarosse, Fairfax, Va., on brief), for appellee.
Before PHILLIPS and SNEEDEN, Circuit Judges, and SENTELLE, United States District Judge for the Western District of North Carolina, sitting by designation.
SENTELLE, District Judge:
Merrimack Mutual was the insurer of one David Weitz under a homeowner’s policy including personal liability coverage. Weitz was operating a motorboat belonging to Barry Goldberg. Goldberg was injured by the apparently negligent operation of the boat by Weitz. Safeco at the time was the insurer of Goldberg under a boat owner’s liability insurance policy. Merrimack defended Weitz against the claims of Goldberg and paid a settlement of $165,-000. At various stages of the GoldbergWeitz controversy, Merrimack demanded Safeco’s participation in defense and ultimately demanded contribution to the settlement. Safeco denied coverage and brought this declaratory judgment action. Safeco’s denial was grounded on a policy provision which Merrimack argued was invalid under Virginia’s omnibus insurance statute. There being no dispute of facts, the court below took the case on cross-motions for summary judgment and allowed the motion of Safeco. We agree with the district court that the omnibus statute does not invalidate the coverage limiting clause involved in this case and, therefore, affirm.
The Safeco boat owner’s policy covering Barry Goldberg at the time of the injury provided liability coverage for bodily injury under provisions which defined “insured” to include “any person using such boat with the permission of the named insured provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission,____” Safeco concedes that at the time of Goldberg’s injuries Weitz was operating the boat as a permissive user within the scope of the permission of the owner and is, therefore, an insured within the meaning of the policy. However, Safeco denies coverage based on the following limitation on the scope of such coverage:
This policy does not apply:
5. to bodily injury to the named insured or any relative if a resident of the same household.
Merrimack, recognizing the existence of the limiting language of paragraph 5, nonetheless argues that Safeco’s liability coverage applies, asserting that paragraph 5 is an unlawful exclusion under Virginia’s “omnibus statute” prescribing the required terms and prohibited exclusions of insurance contracts. The basic statute is found at Section 38.1-381(a) of the Virginia Code and reads, in pertinent part, as follows:
No policy or contract of bodily injury liability insurance, ... covering liability arising from the ... use of any ... boat or other watercraft, shall be issued or delivered in this state to the owner of ... such watercraft ... unless it contains a provision insuring the named insured and any other person ... using the ... boat or other watercraft ... with the consent, express or implied, of the named insured, against liability for death or injuries sustained, or loss or damage occasioned within the coverage of the policy or contract as a result of negligence in the operation or use of such ... watercraft ... by any such person..... [Emphasis added.]
Many cases under this statute and its predecessor statute, Section 4326a of the Code of Virginia, have upheld various exclusions limiting liability coverage. Notably, Jenkins v. Morano, 74 F.Supp. 234 (E.D.Va.1947), applied Virginia law to a factual situation closely analogous to the one involved in this case. In Jenkins, the issue involved an automobile rather than a motorboat but, as in this case, the named insured owner of the vehicle in question was injured by the negligence of a permissive user and the insurer denied coverage under a contract provision excluding application to bodily injury claims of the named insured and certain related persons. The district court, applying Virginia law, found the contract language valid under the Section 4326a provision comparable to and to similar effect as the present omnibus clause. This holding apparently correctly stated the law of Virginia and continues to be good law except that the legislature in 1966 amended the omnibus clause by enacting Section 38.1-381(a2), which reads:
Any endorsement, provision or rider attached to, or included in, any such policy of insurance which purports or seeks in any way to limit or reduce in any respect the coverage afforded by the provisions required therein by this section shall be wholly void.
Merrimack argues that this provision renders invalid the contract language relied upon by Safeco. In support of this proposition, Merrimack argues the decision in Southside Distributing Co. v. Travelers Indemnity Co., 213 Va. 38, 189 S.E.2d 681 (1972). In that case, the Virginia Supreme Court voided an exclusion upon which Travelers relied. That exclusion applied where the permissive user and the injured party were both employees of the named insured. Recognizing that it had previously allowed such exclusions, the court held:
We conclude the purpose of Section 38.1-381(a2) was to prohibit the issuance of policies containing exclusions permitted under our previous interpretation of the “omnibus clause”. Otherwise, the statute would accomplish nothing. Accordingly, we hold that the “omnibus clause”, as amended by Section 38.1-381(a2) prohibits any exclusions from policy coverage except those expressly provided for by statute.
Merrimack asserts that this language should be controlling in the instant case.
Merrimack’s argument, however, ignores a further decision of the Virginia Supreme Court six years after Southside. That case, Transit Casualty Co. v. Hartman’s Inc., 218 Va. 703, 239 S.E.2d 894 (1978), upheld a limitation in the scope of coverage of an automobile liability policy which excluded payment for damage to property owned by the named insured. Two insured vehicles owned by Hartman’s collided. The collision carrier, under a separate policy, sought subrogation against the liability carrier, who asserted the relevant limitation. The court deferred to the maxim that an insurance contract, like any other contract, should be interpreted to give effect of the intention of the parties. Noting that the policyholder could have procured collision insurance from the liability insurer for an additional premium had he chosen to do so, the court declined to work a conversion of the policy, noting that:
[Construction of the contract urged by Hartman would produce the strange result that what is clearly only a policy of liability would be converted into a combination liability and collision policy, with no extra premium required for the additional coverage. Such a result not only would subvert the obvious intention of the parties but also would create a new contract different from what was contemplated when their bargain was struck.
Id., 239 S.E.2d at 897.
It appears to us that the court below correctly determined that Merrimack, like the insured in Hartman’s, supra, is attempting to convert a liability policy into a policy covering first-party loss. The court below correctly determined that the Virginia Supreme Court has held that the Legislature of Virginia did not by the enactment of the omnibus clause intend to accomplish any such result. What the legislature did intend was not an expansion of coverage but a prohibition of nonstatutory exclusions within the coverage afforded. In Hartman’s, as in the case at bar, the controverted provision of the policy is not an exclusion from coverage afforded but rather a limitation upon the coverage in the first instance to third-party rather than first-party losses.
In this case, as in Hartman’s, the named insured could have obtained coverage for at least a portion of his own damages had he chosen to contract for it and pay the premiums. At the time Goldberg contracted for the Safeco coverage, he was afforded the opportunity to obtain medical payments coverage for his own bodily injuries or injuries to others excluded under paragraph 5 above. He in fact contracted for $1,000.00 per person medical coverage.
In the Hartman’s decision, the Virginia court relied in part on its earlier holding in Bankers & Shippers Insurance Co. v. Watson, 216 Va. 807, 224 S.E.2d 312 (1976), where the court defined the purpose of the relevant portion of the omnibus statute to be the protection of the public from losses caused by the negligence of permissive users of insured vehicles. This thread of protecting the innocent public runs throughout the decisions of the Virginia court from Jenkins through Southside through Bankers & Shippers to Hartman’s. In Hartman’s, that policy of Virginia law was done no violence by the limiting language. The same is true in the case at bar.
It would, therefore, appear that the court below applied the law of the State of Virginia without error, and its decision is
AFFIRMED.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_state
|
06
|
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".
Owen Duane NUNNEMAKER, Petitioner-Appellant, v. Eddie S. YLST, Respondent-Appellee.
No. 89-15050.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 17, 1989.
Decided Feb. 21, 1990.
Juliana Drous, San Francisco, Cal., for petitioner-appellant.
Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.
Before FARRIS, PREGERSON and RYMER, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
PREGERSON, Circuit Judge:
Owen Duane Nunnemaker, a California state prisoner, appeals the district court’s dismissal of his petition for a writ of habe-as corpus filed under 28 U.S.C. § 2254. A California jury convicted Nunnemaker of first degree murder under Cal. Penal Code § 187. At trial, a psychiatrist called by the state prosecutor gave testimony on statements made by Nunnemaker in a post-arrest interview. Nunnemaker contends that the admission of the psychiatrist’s testimony violated his Fifth and Sixth Amendment rights, that his Fifth and Sixth Amendment claims are not barred by procedural default, and that he received ineffective assistance of counsel. In light of the Supreme Court’s recent decision in Harris v. Reed, - U.S. -, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), decided after the district court ruled on Nunnemaker’s petition, we reverse in part and remand the case to the district court for consideration of Nunnemaker’s Fifth and Sixth Amendment challenges to his conviction. We affirm the district court’s judgment that Nunne-maker was not deprived of effective assistance of counsel.
BACKGROUND
On January 30, 1976, Owen Duane Nunnemaker was convicted in California state court of first degree murder. He was sentenced to life in prison.
At trial, Nunnemaker introduced expert testimony to establish a diminished capacity defense then available under California law. To rebut this testimony the state prosecutor called as a witness a psychiatrist who interviewed Nunnemaker two days after his arrest. At the time of the interview, Nunnemaker was told that the psychiatrist was working for the prosecution. Nunnemaker, however, was not informed that he had the right to remain silent and the right to an attorney. At trial, defense counsel made several specific objections to certain statements made by the state’s psychiatrist, but failed to challenge the entire testimony on the grounds that it was based on an interview conducted in violation of Nunnemaker’s Fifth and Sixth Amendment rights.
On direct appeal to the California Court of Appeal, Nunnemaker raised for the first time his federal constitutional challenges to the testimony of the state’s psychiatrist. Affirming the conviction, the state appellate court expressly avoided these challenges and held that “the failure to interpose an objection during trial preclude[d its] consideration on review.” The state appellate court, however, considered on the merits — and rejected — Nunnemaker’s ineffective assistance of counsel claim. On direct appeal, the California Supreme Court denied Nunnemaker’s petition for hearing, without comment or case citation, on September 27, 1978.
Nunnemaker petitioned the California courts for a writ of habeas corpus. In his habeas petitions, he raised, among other claims, his federal constitutional challenges to the testimony of the state psychiatrist and his ineffective assistance of counsel claim. His petitions were denied.
Nunnemaker then filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Northern District of California. The district court dismissed the petition without prejudice because the petition did not make clear whether all state remedies had been exhausted. Nunne-maker filed a second petition for habeas relief in the California Supreme Court, arguing again that his statements to the state prosecution psychiatrist were “clearly inadmissible,” and stating in greater particularity his claim of ineffective assistance of counsel. That petition was also denied, without comment or case citation, by the California Supreme Court on April 7, 1988.
Nunnemaker filed another federal habe-as petition. The district court issued an Order to Show Cause on July 8, 1988. On December 9, 1988, the district court denied the petition. The court held that Nunne-maker’s state procedural default barred review of the Fifth and Sixth Amendment challenges to the prosecution’s psychiatrist testimony, and that Nunnemaker had not been deprived of effective assistance of counsel.
Nunnemaker filed a timely notice of appeal. This court has jurisdiction over the district court’s final order under 28 U.S.C. § 2253.
STANDARD OF REVIEW
We review the district court’s denial of habeas corpus relief de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, - U.S. -, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). The question whether Nunnemaker was deprived of effective assistance of counsel is a mixed question of fact and law reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir.1989).
DISCUSSION
I. Procedural Bar
This case presents the issue whether the California Supreme Court’s denial of an original petition for writ of habeas corpus without comment or case citation constitutes a “plain statement” sufficient to establish the procedural default bar of federal habeas review under the Supreme Court’s recent decision in Harris v. Reed, 109 S.Ct. 1038. We hold that it does not.
The Supreme Court has held that a state prisoner barred by procedural default from raising a federal constitutional claim in state court “could not litigate that claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default.” Engle v. Isaac, 456 U.S. 107, 110, 102 S.Ct. 1558, 1562, 71 L.Ed.2d 783 (1982) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). In Harris v. Reed, the Supreme Court applied this rule, but held that “a federal claimant’s [state] procedural default precludes federal habeas review ... only if the last state court rendering a judgment in the case rests its judgment on the procedural default.” 109 S.Ct. at 1043 (emphasis added). The Court explained that Wainwright v. Sykes’ holding that a state procedural default may bar federal habeas review is based on the adequate and independent state ground doctrine, under which the Court “will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Id. 109 S.Ct. at 1042 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 20 Wall. 590, 635-36, 22 L.Ed. 429 (1875)). The Court in Harris applied the “ ‘plain statement’ rule” of Michigan v. Long, 463 U.S. 1032, 1042 and n. 7, 103 S.Ct. 3469, 3477 and n. 7, 77 L.Ed.2d 1201 (1983), to state prisoner cases on federal habeas review, and held that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).
Under Harris, then, a procedural default bars review in federal habeas proceedings only if the last state court ruling on a case states the basis of its decision. Procedural default alone does not bar federal review; the state court’s ruling must have been based, at least in part, on an “adequate and independent” state procedural rule. Harris v. Reed, 109 S.Ct. at 1042. Harris undertakes to resolve the problem — often faced by district courts — of discerning from an ambiguous state court ruling the basis of a decision to deny habeas relief to a state prisoner raising federal constitutional claims. The plain statement requirement ensures that federal courts will decline to review state prisoners’ federal constitutional claims only where required by the interests of comity.
Here, the California Supreme Court was the “last state court to render judgment in the case.” That court did not clearly and expressly state its reliance on Nunnemaker’s procedural default when it denied his final habeas petition. The petition raised Nunnemaker’s objection to the testimony of the state’s psychiatrist and Nunnemaker’s ineffective assistance of counsel claim. From the record before us, we cannot say that the California Supreme Court’s denial of Nunnemaker’s final petition, without comment or case citation, was based on a procedural default rather than on the underlying merits of Nunnemaker’s claims. The rationale and plain language of Harris require that, where, as here, a state supreme court does not plainly state in its summary denial of an original habeas petition that its ruling rests on a state procedural bar, federal habeas review is not precluded.
In fact, the Supreme Court discussed in Harris the issue now before us. The Court addressed concerns raised over the burden the plain statement requirement would place on state courts ruling on habe-as petitions. The Court stated that “a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that ‘relief is denied for reasons of a procedural default.’ ” Harris v. Reed, 109 S.Ct. at 1044 n. 12. The California Supreme Court did not do that in this case.
The district court carefully reviewed Nunnemaker’s habeas petitions, but did not have the benefit of the Supreme Court’s later clarification of federal habeas law in Harris. We hold that the district court was not barred from reviewing Nunnemaker’s federal constitutional claims concerning the testimony of the state’s psychiatrist.
II. Ineffective Assistance of Counsel
Nunnemaker also contends that he was deprived of effective assistance of counsel, and that federal habeas relief should be granted for that reason. This Sixth Amendment ineffective assistance of counsel claim is based on Nunnemaker’s trial counsel’s failure to object to the admission of the state psychiatrist’s testimony on Fifth and Sixth Amendment grounds. The district court concluded that “[djefense counsel was clearly acting as the ‘counsel’ guaranteed by the Sixth Amendment.” We agree.
An ineffective assistance of counsel claim 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.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A convicted defendant complaining of the ineffectiveness of counsel’s assistance must show that counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064.
The trial record demonstrates that Nunnemaker’s counsel vigorously objected to parts of the psychiatrist's testimony on various grounds. Further, because the state’s psychiatrist was subject to potentially damaging cross examination, trial counsel’s decision to allow the testimony, make specific objections, and impeach the witness on bias and credibility grounds may well have been a sound trial tactic.
Nunnemaker has not shown that his trial counsel’s performance “was not ‘within the range of competence demanded of attorneys in criminal cases.’” Id. at 687, 104 S.Ct. at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)).
CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED in part and REVERSED and REMANDED in part.
. The Sonoma County Superior Court denied Nunnemaker’s petition on February 25, 1985. The California Court of Appeal for the First Circuit denied his petition in late 1985. The California Supreme Court denied his first petition on December 3, 1986, and his second petition on April 7, 1988.
. The district court stated:
The petition is not entirely clear as to the procedural history of this matter. Petitioner states that none of his claims were raised by way of direct appeal in the California courts. However, petitioner did present these and other claims to the California Court of Appeal and Supreme Court by way of a habeas petition. The California Supreme Court denied the petition, citing In Re Waltreus, 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] (1965) and In Re Swain, 34 Cal.2d 300, 304 [209 P.2d 793] (1949). These citations are cryptic. Waltreus holds that arguments rejected on appeal will not be reviewed again in habeas; thus the implications of this citation contradict petitioner’s assertion that he did not raise these claims on appeal. Swain, in contrast, holds that habeas claims not pleaded with sufficient particularity must be dismissed without prejudice. This latter citation implies that at least some of petitioner’s claims were not presented on appeal, and the California Supreme Court declined to consider their merits on procedural grounds.
As to any claims raised on appeal to the state and rejected on the merits, petitioner has exhausted his state remedies and this court can hear his habeas petition.... However, any claims not raised on appeal, and whose merits the state courts have not considered on habeas, must be dismissed....
District Court Order, September 8, 1987, at 2.
. Where comity does not require it, federal courts should not deny review. “[T]he federal courts ... have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” Harris v. Reed, 109 S.Ct. at 1045 (Stevens, J., concurring).
. Nunnemaker’s last filing with the California Supreme Court was an original habeas petition, and not a petition for hearing on a denial of habeas relief based on a procedural rule. Under California law, a state prisoner seeking collateral review of his or her conviction may file separate, independent habeas petitions in the superior court, court of appeal, and supreme court. Cal. Penal Code § 1475. In addition, however, a state prisoner whose habeas petition is denied in the court of appeal may file a petition for review of that denial in the California Supreme Court. Cal. Penal Code § 1506. In McQuown v. McCartney, 795 F.2d 807, 809-10 (9th Cir.1986), we held that when a habeas case is before the California Supreme Court on a petition for hearing, rather than as an original habeas petition, a summary denial by the state supreme court is not a decision on the merits of the petition. See also Tacho v. Martinez, 862 F.2d 1376, 1378-80 (9th Cir.1988) (applying McQuown and holding that the Arizona Supreme Court’s denial of review of a trial court denial of habeas relief without case citation or comment was not a decision on the merits). Cf. Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir.1976) (“Where a petition for a writ of habeas corpus presenting a federal constitutional question is denied by a state court with no reason given, we will assume that the state court has had an opportunity to pass upon the merits of the issue and has resolved it against the petitioner.’’).
McQuown does not affect the present case, because the California Supreme Court denied Nunnemaker’s original habeas petition on April 7, 1988. That ruling was a "judgment” under Harris, and was the last rendered by a state court in Nunnemaker’s case. We do not now address the question whether, in light of Harris v. Reed, the California Supreme Court's summary denial of a petition for hearing on a denial of habeas relief based on a procedural rule bars federal habeas review.
. In Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir.1989), cert. denied, - U.S. -, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989), the Fifth Circuit held that, where a state trial court denied review of certain claims on state procedural default grounds but the appellate court "denied relief without written order,” the claims were procedurally barred. That court, however, did not reconcile its decision with the plain language of Harris that "a procedural default does not bar consideration of a federal claim ... unless the last state court rendering judgment in the case 'clearly and expressly’ states that its judgment rests on a state procedural bar," Harris v. Reed, 109 S.Ct. at 1043, and in fact discussed in detail the merits of the petitioner’s claims. We decline to follow Ellis v. Lynaugh.
. Nunnemaker raised this claim on direct appeal in the state court proceedings, and the state appellate court decided the merits of the claim. The state has made no argument that this claim was not properly before the district court. The district court correctly reached the ineffective assistance claim in its review of Nunnemaker’s habeas petition.
. This was the conclusion reached by the state appellate court on direct 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_initiate
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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 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.
SENTRY INDEMNITY COMPANY, Plaintiff-Appellee, v. Frances PEOPLES, Defendant-Appellant.
No. 85-8795.
United States Court of Appeals, Eleventh Circuit.
Oct. 7, 1986.
Stephen F. Carley, Ga., for defendant-appellant.
Richard B. Eason, Jr., Atlanta, Ga., for plaintiff-appellee.
Before HILL and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
CLARK, Circuit Judge:
This appeal is taken from the district court’s grant of plaintiff’s motion for summary judgment in a declaratory judgment action filed by Sentry Indemnity Company seeking a declaration that its automobile insurance application forms were in substantial compliance with O.C.G.A. § 33-34-5(b) at the time that it entered into a contract to provide automobile insurance to the appellant, Frances Peoples, and that Peoples was thus not entitled to any Optional Personal Injury Protection (PIP) Coverage benefits under her insurance policy beyond those already paid to her by Sentry. We reverse.
Peoples signed an application for automobile liability insurance provided by Sentry on May 3,1978. At that same time, she signed the bottom of a separate form entitled “Georgia Automobile Supplementary Application — Offer to Purchase Additional Coverage.” That one-page form contained boxes to be marked for acceptance or rejection of various levels of optional PIP, collision, comprehensive, loss of use, towing & labor, and uninsured motorists coverage. At the bottom of the page, there was a single blank for the “signature of the Insured.” On Peoples’ application, the box labeled “No Optional PIP” was marked, as were boxes indicating the desired amounts of the other optional coverages. Peoples placed her signature at the bottom of the form in the space indicated. If no optional coverage is purchased, the basic PIP coverage in Georgia is $5,000.
On February 11, 1980, Peoples was involved in an automobile accident, and Sentry made a timely payment of basic PIP benefits to her. By letter of counsel dated October 6, 1981, Peoples requested additional retroactive PIP coverage and offered to pay any necessary premiums. This seemingly unusual request was apparently based upon the holding of the Court of Appeals of Georgia in Jones v. State Farm Mutual Automobile Insurance Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980), cert. dismissed, 248 Ga. 46, 280 S.E.2d 837 (1981). In that case, the plaintiff signed an application form for no-fault automobile insurance in the only place provided thereon for his signature, making no other marks on the form. The court found that the insurance company had thus violated Ga. Code Ann. § 56-3404b(b) (1978) (now O.C. G.A. § 33-34-5(b)). The court held that:
This statute contemplates that insureds who have not had an opportunity to accept or reject the optional no-fault coverage required to be offered under Code Ann. § 56-3404b(a) are deemed to have been given a “continuing” offer of such coverage from the date of the issuance of the liability policy until 30 days after being given the opportunity in writing to accept or reject the coverage ... [and that those insureds are] entitled to “accept” this offer, tender the premiums and enforce the resulting contract.
Jones, supra, 156 Ga.App. at 234, 274 S.E.2d at 626-27. Although Peoples’ application clearly contained the separate spaces for “acceptance or rejection of each of the optional coverages” as required, it was arguable after Jones that her application, like that of Jones, did not meet the requirement that “these spaces [be] completed and signed by the prospective insured” since each space for accepting or rejecting various optional types of coverage had been checked but there was not a separate signature for each one.
Apparently relying on the belief that her application was legally indistinguishable from that of Jones, Peoples attempted to take advantage of the “ ‘continuing’ offer of [optional] coverage” referred to by the court in Jones by sending the letter of October 6 requesting additional PIP coverage and offering to pay any necessary premiums. Sentry denied this request for optional PIP coverage, and Peoples subsequently filed suit claiming optional PIP benefits. Proceedings in that suit were then stayed pending the decision in Flewel-len v. Atlanta Casualty Co., 250 Ga. 709, 300 S.E.2d 673 (1983), in which the Supreme Court of Georgia first addressed itself to the interpretation of O.C.G.A. § 33-34-5(b).
In Flewellen, the court was presented with the question of whether the insureds were entitled to the $5,000 minimum PIP coverage as indicated on the faces of their policies or the $50,000 maximum optional coverage that the Jones decision indicated would still be available to them if the applications they had filled out had not conformed to the requirements of O.C.G.A. § 33-34-5(b). The application of Atlanta Casualty Company as completed by one of the plaintiffs, Mrs. Flewellen, contained merely a single signature at the end of the application. The application of Allstate Insurance Company as completed by the other plaintiff, Mrs. Van Dyke, on the other hand, contained a separate signature line adjacent to the options relating to PIP and a separate signature line adjacent to the options relating to property damage coverage, with the appropriate rejection boxes checked and the signature lines signed by the applicant. The court concluded:
We hold that the requirements of [O.C. G.A. § 33 — 34—5(b) ] are satisfied by two signatures, one for acceptance or rejection of the optional PIP and another to indicate acceptance or rejection of vehicle damage coverage. The Allstate application and the manner in which it was executed and signed by Van Dyke meets these requirements. The Atlanta Casualty application completed by Flewellen does not.
In the absence of such a rejection, the policy, therefore, provides $50,000 PIP coverage [which the insurer is required to offer under O.C.G.A. § 33-34-5(a)] from its inception. The insured has the right to demand and receive the benefit of $50,000 coverage upon tender by the insured of such additional premium as may be due and filing of proof of loss by the injured party.
Flewellen, supra, 250 Ga. at 712, 300 S.E.2d at 676.
Based upon the decision in Flewellen, Sentry decided that the form which had been signed by Peoples had not constituted a valid rejection of the optional PIP coverages and thus acknowledged and began paying Peoples’ claims for optional PIP benefits. On March 25, 1983, the attorney for Sentry wrote to Peoples’ attorney as follows:
This will further acknowledge your claim regarding optional coverage. We understand that a Motion for Reconsideration was filed in Flewellen v. Atlanta Casualty on March 14, 1983.
We note that the Supreme Court in its Flewellen decision rejected the “continuing offer” theory of Jones v. State Farm. The March 3rd ruling requires that unless the application contained two signatures — one to accept or reject optional PIP and one to accept or reject physical damage coverage — full optional coverages are automatically included in the policy from its inception. Thereafter, the only requirement to activate all terms of the policy is payment of any additional premium due and filing proof of loss by the injured party.
If there is no change in the final Flewel-len decision, the additional premium due will be $694.45, bill attached.
We intend to fully comply in good faith with whatever the final appellate decision may be, and promptly consider the merits of your claim.
Record, Vol. 1, Tab 9, Exhibit F. On April 21, 1983, he further wrote:
This will further acknowledge your claim for optional coverage. On March 28, 1983, [sic] the Motion for Reconsideration was denied in Flewellen.
The Supreme Court rejected the “continuing offer” theory of Jones v. State Farm. The only requirement to activate all terms of the policy is payment of any additional premium due and filing proof of loss by the injured party.
We are attaching timely payment of optional benefits based upon proof of loss to date of economic damages which are reasonable and necessary. The payment takes into consideration prior PIP payments and the premium quoted for full optional coverages based upon Flewel-len. We trust this handling meets with your approval.
Any additional proof of loss of economic damages you may have will be promptly considered.
Record, Vol. 1, Tab 9, Exhibit G.
Sentry further acknowledged provision of optional PIP coverage to Peoples pursuant to Flewellen in pleadings filed with the United States District Court for the Northern District of Georgia in the summer of 1983 as follows:
Sentry Indemnity Company did not offer Plaintiff [Peoples] optional “No-Fault” benefits until its obligation to do so under the authority of “Flewellen” because of the confusion reigning in the law up to the date of the Flewellen decision.
7.
Defendant [Sentry] does not contest its obligation to pay Plaintiff optional “No-Fault” benefits to which she may be entitled, which arose as a direct result of the automobile accident referred to above, upon proof of loss by the injured party.
8.
Defendant has tendered the optional PIP “No-Fault” benefits to which Plaintiff is entitled based upon proof of loss to date.
Record, Vol. 1, Tab 10, Supplementary Statement of Material Facts As To Which There is No Genuine Issue, at 2.
Defendant [Sentry] has provided optional PIP coverage and paid current PIP benefits due to date which are supported by reasonable proof of loss.
Record, Vol. 1, Tab 9, Exhibit U, at 2.
Defendant’s tender to Plaintiff [Peoples] of $1,594.96 and $266.67 of optional PIP benefits does not constitute an offer of settlement, but does constitute payment of benefits due to date. Defendant has provided optional coverage pursuant to Flewellen and tendered payment of benefits due to date which are supported by reasonable proof of loss. Further, Defendant has tendered payment of future benefits which are supported by reasonable proof of loss.
Record, Vol. 1, Tab 9, Exhibit V, at 1.
On August 5, 1983, the district court noted this agreement by Sentry to extend full optional PIP benefits:
There is no longer any dispute in this suit as to whether the insurance application complies with the requirements set forth by the Supreme Court of Georgia or whether the Plaintiff is entitled to the optional PIP benefits; the insurance company has notified the Plaintiff that it will extend the optional PIP coverage.
Because Sentry Indemnity Company has already agreed to extend the full amount of coverage, the Plaintiffs Motion for Summary Judgment is DISMISSED as moot.
Record, Vol. 1, Tab 9, Exhibit W, at 2.
With the optional benefits thus being paid by the insurance company, Peoples and Sentry were able to reach a settlement of their pending lawsuit whereby Sentry paid Peoples the amount claimed in optional PIP benefits through September 16, 1983, minus an allowance for optional PIP premiums. Peoples and her husband expressly reserved the right to make further claims for optional PIP benefits resulting from the 1980 accident as they might accrue after September 16, 1983 in the Release and Settlement Agreement.
Notwithstanding any terms or provisions to the contrary, this release is not intended and we expressly do not waive or release any claim for future optional PIP benefits which may be sustained subsequent to September 16, 1983 and the parties hereto do not waive any rights relevant thereto pursuant to Georgia Law or said policy.
I/we understand and agree that this settlement is in full compromise, accord and satisfaction, of doubtful and disputed claims, coverages, and damages, and that the payment of the above set forth consideration is not to be construed as an admission of liability under any coverages provided by Sentry Indemnity Company, which claims are denied and regardless of the adequacy of the compensation, is intended to avoid litigation, and that there is absolutely no agreement on the part of said Sentry Indemnity Company, or any other person, firm or corporation, to make any part or do any act or thing other than herein expressly stated and clearly agreed to.
Record, Vol. 1, Tab 9, Exhibit 0, at 2-3. The suit filed by Peoples was then dismissed with prejudice with consent of the parties and with the note by the district court that ‘Ttlhis Dismissal does not affect claims sustained after September 16,1983.” Record, Vol. 1, Tab 9, Exhibit N., at 1.
After the dismissal, Peoples filed further claims for optional PIP benefits stemming from the 1980 accident and accruing after September 16, 1983. These claims were not paid by Sentry. Then, on April 4, 1984, the Supreme Court of Georgia announced its decision in St. Paul Fire & Marine Insurance Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984). St. Paul presented the court with the following question:
[W]hether an application for optional no-fault motor-vehicle insurance coverage is in substantial compliance with the requirements of O.C.G.A. § 33-34-5(b) ... where the application contains separate spaces for the insured to indicate his acceptance or rejection of the optional coverages, but the insured’s signature appears only at the bottom of the page of the insurance application offering the optional coverages.
St. Paul, supra, 252 Ga. at 470, 314 S.E.2d at 216. The court held that “such a policy application is in substantial compliance with § 33-34-5(b).” Id. Distinguishing the case from Flewellen, the court wrote:
As stated by Chief Justice Hill in his special concurrence to our dismissal of the writ of certiorari in Nalley v. Select Ins. Co., 251 Ga. 722, 723, 313 S.E.2d 465 (1983), “While in deciding Flewellen, we held that two signatures satisfied the statutory requirements, we did not hold that two signatures were mandatory in every case.” Here, as in Nalley, although the optional coverage application has only one signature, it is clear from the form of the application that the intent of the insured was to reject optional PIP benefits and vehicle damage protection.
St. Paul, supra, at 470, 314 S.E.2d at 217 (emphasis in original).
Based upon its conclusion that the application completed by Peoples was legally indistinguishable from that in St. Paul in that both “contained] separate spaces for the insured to indicate his acceptance or rejection of the optional coverages, but the insured’s signature appears only at the bottom of the page of the insurance application offering the optional coverages,” id. 469, 314 S.E.2d at 216, Sentry filed the complaint for declaratory judgment in this case on April 23, 1984, seeking a judicial determination that the application form filled out by Peoples was in substantial compliance with O.C.G.A. § 33-34-5(b) and that Peoples is thus not entitled to any optional PIP benefits beyond those already paid her in the 1983 settlement.
Peoples argued to the district court, first, that Sentry’s form was not in substantial compliance and, second, that by entering into the settlement in the previous case, Sentry had accepted Peoples’ tendered premium for retroactive optional PIP coverage and thus entered into a contract to provide that optional coverage.
The district court held:
Plaintiff’s insurance application, like that in St. Paul, supra, consisted of two pages with signature lines at the bottom of each. The second page, also similar to that in St. Paul, is divided into different types of optional coverages, and the portion regarding optional PIP coverages contains boxes to be marked for accepting different amounts of coverage or rejecting all optional PIP coverages. Thus, the application is in substantial compliance with former O.C.G.A. § 33-34-5(b). Therefore, Defendant made a valid rejection of all optional PIP coverages when she executed the application on May 3, 1978.
The court finds no merit in Defendant’s argument that the settlement of the previous lawsuit constitutes a binding agreement by Plaintiff to provide maximum optional PIP coverage. That settlement was entered into prior to the decision in St. Paul, supra. However, the settlement agreement did not commit Plaintiff to honor future claims. In fact it was limited to all claims made through September 16, 1983. That agreement does not prevent Plaintiff from denying claims for optional PIP benefits arising after that date.
Record, Yol. 1, Tab 11, at 2-3.
On appeal, Peoples argues that, even if her application did indeed substantially comply with O.C.G.A. § 33-34-5(b), her demand for maximum optional PIP coverage constituted an offer, and Sentry’s “eventual acceptance of said offer by agreeing to grant Defendant said maximum optional no-fault coverage, quoting a premium therefore, paying benefits thereon and giving credit for the full premium therefore constituted an accepted of said offer and a contract was formed between the par-ties____” Brief of Appellant at 15.
We do not accept Peoples’ argument that her demand for optional PIP coverage was an offer and Sentry’s payment of benefits from such coverage was an acceptance. However, we do hold that a contract for maximum optional PIP coverage was formed, with the offer and acceptance being Sentry’s payment of optional PIP benefits in the months following the Flewellen decision and the deduction from those payments with Peoples’ consent of the full premium for such coverage.
Sentry argues that, even if such a contract was formed, it cannot be enforced because the consideration upon which it is based was given as a result of a mutual mistake of law. See O.C.G.A. § 13-5-4. The mistake which Sentry alleges concerns the validity of Peoples’ rejection of optional PIP coverage in 1978. In the wake of Flewellen, both parties seem to have assumed that the rejection was not valid and that Sentry was thus required to provide benefits under the optional coverage. In light, of St. Paul, however, Sentry now feels that the rejection was valid. The problem with Sentry’s argument here is that it is not based upon a mutual mistake of law but upon a change in the law from Flewellen to St. Paul, and a change of law does not operate under O.C.G.A. § 13-5-4 to make a contract unenforceable. As the author of the opinion for the court in Flew-ellen explained in his dissenting opinion in St. Paul: “The majority would rely on the principle of substantial compliance____ This is nothing less than a direct retreat from the position taken by this court one year ago in Flewellen. ” St. Paul, supra, at 471, 314 S.E.2d at 217 (Clarke, J., dissenting) (citation omitted).
Having decided that a binding contract for the provision of full optional PIP coverage and benefits was formed between Sentry and Peoples in 1983 after the Flewellen decision was announced, we need not reach the question of whether the policy application signed by Peoples in 1978 is in substantial compliance with O.C.G.A. § 33-34-5(b) under St. Paul.
REVERSED and REMANDED.
. O.C.G.A. § 33-34-5(b) (1978) provided in pertinent part:
Each application for a policy of motor vehicle liability insurance sold in this State must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) above and no such policy shall be issued in this State unless these spaces are completed and signed by the prospective insured.
. As Professor Corbin wrote:
In most cases in which money has been paid in the belief that it was due, such belief being induced by the existing judicial decisions, the payor has been held not entitled to restitution when those decisions are disapproved in a later decision. Of course, the later decision may be overruled too.
3 A. Corbin, Corbin on Contracts § 617 at 757 n. 61 (1960).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_treat
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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.
Roy Kenneth SPARKS, Petitioner-Appellant, v. Dewey SOWDERS, Warden, Northpoint Training Center, Respondent-Appellee.
No. 87-5749.
United States Court of Appeals, Sixth Circuit.
Argued June 6, 1988.
Decided Aug. 4, 1988.
J. Kirk Griggs, II (argued), Lexington, Ky., for petitioner-appellant.
David Armstrong, Atty. Gen., Frankfort, Ky., Joseph R. Johnson (argued), for respondent-appellee.
Before KENNEDY and JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.
CONTIE, Senior Circuit Judge.
Petitioner, Roy Kenneth Sparks, appeals from the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we REVERSE the judgment of the district court and REMAND for an evidentiary hearing.
I.
Petitioner was charged with murder and first degree robbery by a Carter County grand jury in the commonwealth of Kentucky. The case went to trial in March of 1984. After three days of trial, during which the commonwealth introduced a tape recording of petitioner discussing his participation in the murder in great detail with a police informant, petitioner changed his plea to guilty and was sentenced to thirty-five years in prison on the murder charge. The first degree robbery charge was dismissed.
In his pro se memorandum which accompanied his petition, petitioner made the following allegations concerning his guilty plea.
On March 15, 1984, the third day of petitioner's trial, after defense counsel had already advised petitioner that if he didn’t plead guilty he would get life without parole, petitioner was informed that his mother was in the hospital in critical condition. Petitioner’s counsel then advised him that if he didn’t plead guilty he may never see his mother again. At this point petitioner was confused and under duress and finally agreed to plead guilty for a recommendation of thirty-five (35) years.
Before accepting his guilty plea, the court engaged in the following colloquy:
The Court: I understand from talking with counsel and the defendant and the commonwealth attorney and the other parties involved in this action that the defendant has changed his mind and desires to enter a plea of guilty, is that correct sir?
Mr. Gailbraith: Based on the recommendation of the prosecutor, that’s correct your Honor.
The Court: Mr. Sparks I understand that you desire to enter a plea of guilty to this charge, is that correct?
Mr. Sparks: Yes sir.
The Court: Have you been made any promises by anybody as to what the court would do other than the recommendation as to the sentence by the commonwealth attorney?
Mr. Sparks: No sir.
The Court: Has anyone put any pressure on you to enter a plea of guilty?
Mr. Sparks: No sir.
The Court: The plea is being made voluntarily?
Mr. Sparks: Yes sir.
The Court: Is it made because you feel like you are guilty of the charge?
Mr. Sparks: Yes sir.
The Court: Do you also understand that there is no right of appeal when you enter a plea of guilty that there is no right of appeal from that, do you understand that?
Mr. Sparks: Yes sir.
The Court: You still want to enter a plea of guilty?
Mr. Sparks: Yes sir.
The Court: Do you need any more time to discuss it with your attorney?
Mr. Sparks: No sir.
Subsequently, petitioner filed a motion to vacate his sentence alleging, inter alia, that his guilty plea was invalid as being involuntary and not intelligently made and that he was denied effective assistance of counsel. The motion was denied by the trial court. The court of appeals affirmed. 721 S.W.2d 726 (Ky.Ct.App.1986). The Kentucky Supreme Court denied discretionary review.
Petitioner filed a petition for a writ of habeas corpus in district court. He raised the following grounds in his petition: that the guilty plea was not knowingly, intelligently and voluntarily entered due to the trial court’s failure to inform him of the constitutional rights he was waiving by entering such a plea and that he was denied effective assistance of counsel by his counsel’s “mis-advice” and failure to challenge the defective indictment. In a memorandum in support of his petition, petitioner made the following assertion:
Concerning petitioner’s first contention, petitioner was charged with murder and tried as a non-capital offense. Therefore, the maximum penalty was life imprisonment with the requirement of serving eight (8) years before being eligible for parole. Has [sic] petitioner been convicted by a jury and sentenced to life imprisonment he would have served eight (8) years before being eligible for parole, however, petitioner received a thirty five [sic] (35) sentence and he is still required to serve more than seven (7) years before being eligible for parole. Had petitioner not been advised by counsel that he would get life without parole, he would have continued with his trial.
The petition was referred to a magistrate who took a totality of the circumstances approach to the issues presented, and recommended that the petition be denied. The district court took a similar approach and dismissed the petition, without holding an evidentiary hearing. Petitioner appeals from this dismissal.
Petitioner argues that the presentation of misinformation by his counsel denied him effective assistance of counsel and that the trial court’s failure to inform him, on the record, of the fundamental rights he was waiving by entering a guilty plea violated his due process right under the fourteenth amendment.
II.
A.
Petitioner argues that he was denied effective assistance of counsel. He concludes that due to the misinformation provided by his counsel he decided to plead guilty instead of proceeding with the trial and taking his chances with the jury. The two-part Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), test applies to challenges to guilty pleas based on ineffective assistance of counsel.
In the context of guilty pleas, the first half of the test is met by showing that an attorney’s actions were not within the range of competence demanded of attorneys in criminal cases. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).
The second, or ‘prejudice,’ requirement on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
Hill, 474 U.S. at 59, 106 S.Ct. at 370 (footnote omitted).
In Hill, the Court was confronted with the following question: “whether petitioner is entitled to an evidentiary hearing in a federal habeas proceeding where he has alleged that his guilty plea entered in state court was involuntary and resulted from ineffective assistance of counsel.” Hill, 474 U.S. at 60-61, 106 S.Ct. at 371-72. (White, J., concurring). The Court concluded that Hill was not entitled to an eviden-tiary hearing on his ineffective assistance of counsel claim because he had failed to make sufficient allegations to satisfy the prejudice prong of the Strickland test.
Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Indeed, petitioner’s mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted.
Id. at 60.
In the instant case, unlike Hill, petitioner has asserted and continues to assert that he would not have pleaded guilty had he been given the correct information concerning his eligibility for parole. Accordingly, we conclude that petitioner has made a sufficient allegation to satisfy the prejudice requirement of Strickland and warrant an evidentiary hearing. This, however, does not close the analysis, since petitioner also must allege facts which satisfy the first prong of Strickland.
Petitioner alleges that his trial counsel erroneously told him that if convicted he could receive a sentence of life without parole. It is uncontested that there is no such penalty as “life without parole” in Kentucky. Initially, we must decide whether petitioner’s trial counsel’s alleged misadvice concerning parole eligibility fell short of the range of competence demanded of attorney’s in criminal cases.
This court has yet to decide whether erroneous advice concerning parole eligibility can amount to ineffective assistance of counsel. See Brown v. Perini, 718 F.2d 784, 789 n. 4 (6th Cir.1983). However, this issue has been addressed by other circuits which have held or noted that misinformation concerning parole eligibility can be ineffective assistance of counsel. See Strader v. Garrison, 611 F.2d 61, 65 (4th Cir.1979) (when petitioner is grossly misinformed about parole eligibility dates by his lawyer, and he relies upon the misinformation, he is deprived of his constitutional right to counsel). See also, Cepulonis v. Ponte, 699 F.2d 573, 577 n. 7 (1st Cir.1983) (noting that misinformation may be more vulnerable to constitutional attack than lack of information); Czere v. Butler, 833 F.2d 59, 63 (5th Cir.1987) (noting without deciding that giving misinformation may satisfy the first prong of the Strickland test); Hill v. Lockhart, 731 F.2d 568, 572 (8th Cir.) (refusing to follow Strader because gross misinformation was not involved in the case), aff'd by equally divided court 764 F.2d 1279 (8th Cir.1984) (en banc), aff'd 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Brown, 718 F.2d at 789 n. 4 (distinguishing Strader on basis that the advice given by defense counsel could not be characterized as gross misadvice).
We now hold that gross misadvice concerning parole eligibility can amount to ineffective assistance of counsel.
In the instant case, petitioner alleges that his attorney advised him that he could receive the sentence of life without parole if he was convicted of murder. In reality, petitioner did not face such consequences, and would have been eligible for parole even if he were given a life sentence. Petitioner also alleges that had he been given the correct information concerning parole, he would not have pleaded guilty and would have continued with the trial. Given the petitioner’s allegations, we conclude that the petitioner is entitled to an eviden-tiary hearing on his ineffective assistance of counsel claim.
B.
Petitioner also argues that his plea was invalid because the trial court failed to enunciate the fundamental rights he was waiving by entering a guilty plea.
Petitioner relies on Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) for the proposition that a waiver of the important federal rights of privilege against self incrimination, right to trial by jury, and the right to confront one’s accusers cannot be presumed from a silent record. See also Roddy v. Black, 516 F.2d 1380, 1383-84 (6th Cir.) (“Boykin mandates that a conviction based on a guilty plea be reversed unless the ‘prosecution spread[s] on the record the prerequisites of a valid waiver’ of the constitutional rights which a defendant surrenders by pleading guilty”), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975).
In Fontaine v. United States, 526 F.2d 514, 516 (6th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976) this court stated that “Boykin does not require separate enumeration of each right waived and separate waivers as to each.” “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). In viewing guilty pleas, we look at the totality of the circumstances surrounding the plea. See Caudill v. Jago, 747 F.2d 1046, 1050 (6th Cir.1984); Brown v. Perini, 718 F.2d 784, 786 (6th Cir.1983).
In deciding whether petitioner’s plea was knowingly and voluntarily given, the district court made the following conclusions:
The Court has considered the entire record and has determined that the record indicates a knowing, intelligent, and voluntary waiver of his constitutional rights. It is obvious that the petitioner knew he was waiving the right to a jury trial and to confront witnesses when during the middle trial [sic] he decided to enter his guilty plea.
While the court did not err in finding that Sparks understood he was waiving his right to a jury trial, which was being stopped so he could plead guilty, and his right to confront witnesses, which he had been exercising, it failed to consider the effect that petitioner’s counsel’s alleged misadvice may have had on the knowingness and voluntariness of his plea.
Because the district court failed to consider petitioner’s attorney’s misstatements, we conclude that it erred when it found that the plea was knowingly and voluntarily given without conducting an evidentiary hearing. On remand, we direct the court to inquire into all of the circumstances surrounding petitioner’s guilty plea in making a determination of whether the plea was knowingly and voluntarily given.
Accordingly, we REVERSE the district court’s denial of the petition for a writ of habeas corpus and REMAND for proceedings consistent with this opinion.
. In its first brief before- this court, the commonwealth adopted the petitioner’s statement of the facts unequivocally. However, in its brief filed in response to the brief filed by petitioner's court appointed counsel, the commonwealth modified its adoption of the facts. It disavowed any knowledge of statements made concerning petitioner’s mother and disagreed with the assertion that petitioner was confused and under duress.
. On this appeal, petitioner does not raise this latter claim of ineffective assistance of counsel.
. At oral argument, the commonwealth represented that had Sparks been given a life sentence, he would have been eligible for parole in eight years and that given a thirty-five year sentence, he is eligible for parole in seven years.
. The misstatement was the attorney's assertion that petitioner could be sentenced to life without parole. The commonwealth attacks this argument by asserting that under the circumstances — i.e., the evidence presented against him and the offer to drop the first degree robbery charge —the petitioner would have pleaded guilty even if he had not been provided the incorrect information concerning parole. In his pro se memorandum filed below, petitioner directly contradicts this assertion. In deciding not to hold an evidentiary hearing, the district court adopted the argument of the commonwealth.
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Sterling Leroy HAINES, Defendant-Appellant.
Nos. 88-5529, 88-5530
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 2, 1988.
Lucien B. Campbell, Federal Public Defender, P. Joseph Brake, Asst. Federal Public Defender, San Antonio, Tex., for defendant-appellant.
Helen M. Eversberg, U.S. Atty., Le Roy Morgan Jahn, Michael R. Hardy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-ap-pellee.
Before GEE, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
In this case we are faced with the claim that the statute making the sentencing guidelines applicable only to crimes committed after they went into effect is an unconstitutional ex post facto law as it applies to crimes committed before the guidelines were promulgated. This unique contention constitutes a complete miscom-prehension of the prohibition against ex post facto laws contained in Art. I § 9 of the United States Constitution. We affirm the refusal of the district court to use the sentencing guidelines in the case of this appellant whose criminal offenses were committed before the guidelines went into effect.
On January 4, 1988, appellant Sterling Haines pleaded guilty in one case to one count of mail fraud, 18 U.S.C. § 1341, and one count of equity skimming, 12 U.S.C. § 1709-2. At the same time he also pleaded guilty in another case to one count of escaping from custody, 18 U.S.C. § 751(a). All of these offenses were committed before November 1, 1987, the date upon which the United States Sentencing Guidelines became effective. United States v. Hurtado, 846 F.2d 995, 996 (5th Cir.1988).
Before sentencing, Haines moved the court to impose sentence in accordance with the sentencing guidelines. He argued that the guidelines should apply to convictions which take place after the November 1, 1987 date, although the crimes took place before that date. The district court denied the motion, and Haines was sentenced to a five-year term and two three-year terms, all consecutive. His appeal is timely.
The sentencing guidelines which went into effect on November 1, 1987, were developed by the United States Sentencing Commission under the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991, 994(a). On December 7, 1987, Congress amended the 1984 enabling statute by expressly limiting the applicability of the new guidelines to criminal offenses committed after the November 1, 1987, effective date. Sentencing Act of 1987, Pub.L. No. 100-182, sec. 2(a), 101 Stat. 1266. The contention by Haines is that since he was sentenced after November 1, 1987, the guidelines should have been applied and would have governed his punishment, with the result of more lenient sentences. Since the 1987 amendment prevented the guidelines from being applicable to his cases, the amendment is an unconstitutional ex post facto law because it foreclosed more favorable guideline sentences.
A retrospective amendment of sentencing guidelines would violate the ex post facto law if the amendment “makes more onerous the punishment for crimes committed before its enactment.” Miller v. Florida, - U.S. -, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). Obviously the 1987 statute and the guidelines did not and could not have made more onerous the punishment for crimes committed before its enactment. It was the very purpose of the amending statute to confirm that there could be no ex post facto claim that the sentencing guidelines had increased the punishment for offenses committed before they went into effect. Making them totally inapplicable to any criminal offense committed before they went into effect completely obviated that ex post facto possibility.
On the other side of the coin, there is absolutely no constitutional authority for the proposition that the perpetrator of a crime can claim the benefit of a later enacted statute which lessens the culpability level of that crime after it was committed. His culpability is adjudged on the basis of the laws that existed when he committed the crime.
The tenuous line of reasoning relied upon by Haines is that the Sentencing Reform Act of 1984, under which the guidelines were to be developed, was in effect at the time he committed the crimes. Thus, he would have been entitled to be sentenced under the guidelines if it had not been for the amendment in 1987 that made the guidelines applicable only to crimes committed after they went into effect. There are two answers to this line of reasoning. The first is that while the 1984 statute set up the commission which created the guidelines, the guidelines did not exist until after Haines committed the crimes for which he was sentenced. It is fanciful indeed to claim that he was entitled to the application of guidelines which did not exist.
But even beyond that, it is clear that when Congress enacted the Sentencing Reform Act of 1984 it intended the new guidelines, when they were developed, to apply only to offenses committed on or after their effective date. See the thorough presentation in United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988). Accord, United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1987). A congressional intention to make the guidelines applicable to crimes committed before they went into effect would result in ex post facto constitutional violations. Any ambiguity on this issue in the 1984 statute must be resolved by interpretation. Statutes are to be interpreted to avoid constitutional violation. “It is a cardinal principle that this Court will first ascertain whether construction of the statute is fairly possible by which the [constitutional] question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). This quotation is frequently cited in more recent cases, e.g., United States v. Security Industrial Bank, 459 U.S. 70, 78, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (1982); Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979).
This general rule of interpretation must be applied here. Thus, the later 1987 amendment made no change in the law. It merely confirmed the intent of the 1984 statute as Congress had enacted it. A contrary interpretation would lead to open and obvious violations of the ex post facto prohibition in the Constitution. Such clearly was not the intent of Congress. See generally United States v. Cooper, 685 F.Supp. 179, 180 (N.D.Ill.1988); 133 Cong. Rec. H10021 (Daily ed. Nov. 16, 1987) (statement by Representative Fish that the amendment was offered “to make it clear” that the new guidelines apply only to criminal conduct occurring after the guidelines went into effect).
We conclude that Haines was never entitled to be sentenced under the new guidelines because they were never applicable to his criminal offenses and the sentences flowing from them. His ex post facto claim is meritless.
AFFIRMED.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_state
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Joseph A. CIRILLO and Martha R. Cirillo, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Joseph A. CIRILLO and Martha R. Cirillo, Respondents.
Nos. 13902, 13903.
United States Court of Appeals Third Circuit.
Argued Oct. 15, 1962.
Decided March 1, 1963.
James C. Larrimer, Pittsburgh, Pa. (Dougherty, Larrimer & Lee, Pittsburgh, Pa., on the brief), for taxpayers.
David I. Granger, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Attorneys, Department of Justice, Washington, D. C., on the brief), for Commissioner.
Before McLAUGHLIN and HASTIE, Circuit Judges, and DUMBAULD, District Judge.
HASTIE, Circuit Judge.
In June 1957, Joseph Cirillo and his wife, Martha, jointly filed their first income tax returns for the years 1945 to 1954, inclusive. They acted after having learned that revenue agents were investigating the husband’s tax liability. Throughout the years in question, the husband had received both a regular salary as a municipal employee, from which appropriate sums had' been withheld on account of income taxes, and modest fees earned in the part-time practice of law. The wife had received no income. The Commissioner disallowed certain deductions claimed in the delinquent returns and imposed penalties. The controversy ultimately reached the Tax Court,, which sustained the deficiencies determined by the Commissioner and held that part of each annual deficiency had resulted from fraud with intent to evade taxes. The Tax Court held both spouses liable for the amounts of the deficiencies not covered by salary withholdings and imposed an additional 50% fraud penalty for each year upon the husband alone. T.C. Memo 1961-192. The case is here on cross petitions wherein the spouses urge that the fraud penalty was both unjustified and erroneously computed, while the Commissioner claims that fraud penalties should have been imposed upon both husband and wife.
Before the Tax Court, Joseph Cirillo, whom we shall call the taxpayer, testified that he had failed to file timely returns, not because of any intent to defraud, but because he believed, on the basis of a summary mental calculation made at the end of each year, that the with-holdings from his salary alone were enough to cover all income taxes payable •on both his salary and his small net income from private law practice. Cf. First Trust & Sav. Bank v. United States, 8th Cir. 1953, 206 F.2d 97. However, he concedes that he kept no systematic records of receipts and expenditures in the course of his practice and made no detailed computation of his tax liability at the end of each taxable year. In the absence of such records, he urges that the good faith and reasonableness of his asserted belief that his taxes were covered by salary withholdings are substantiated by the subsequent detailed computations which appear in the delinquent returns filed in 1957. In summary, the tax liabilities, withholdings and consequent obligations and overpayments shown on those returns are as follows:
Although the Tax Court disallowed about half of the deductions claimed in these returns, the taxpayer relies on the court’s finding that “there is no contention or showing that the delinquent returns involved here are fraudulent”.
The taxpayer does not challenge the existence of deficiencies or their amounts as found by the Tax Court. Therefore, we have to consider only whether and to what extent fraud penalties were justified.
The evidence in this case strongly indicates that the taxpayer’s failure to file returns was a willful neglect of a statutory duty. As a lawyer, he must have been aware that one who earns several thousand dollars a year is obligated to file income tax returns. Each year he was reminded of his duty to file a return by the standard W-2 Form which he received from his employer. Moreover, he has been convicted of the misdemeanor of willful failure to file income tax returns for the years 1953 and 1954. United States v. Cirillo, 3d Cir., 1957, 251 F.2d 638, cert. denied, 1958, 356 U.S. 949, 78 S.Ct. 914, 2 L.Ed.2d 843.
But willful failure to file a timely return, which may create both criminal liability and an additional civil liability, does not in itself and without more establish liability for a fraud penalty, though it may be relevant in that connection. Jones v. Commissioner, 5th Cir., 1958, 259 F.2d 300. This is true because a fraud penalty can be imposed only where proof of a deficiency is supplemented by proof that the “deficiency is due to fraud with intent to evade tax”. Int.Rev.Code of 1939, § 293(b), ch. 2, 53 Stat. 88; cf. Int.Rev.Code of 1954, § 6653(b). First Trust & Sav. Bank v. United States, supra. The critical question is whether the circumstances attending a particular failure to file warrant an inference of intention to evade taxes. Moreover, the evidence must be evaluated in the light of the settled rule that fraud can be established only by clear and convincing proof or, as we have put it, “by something impressively more than a slight preponderance of evidence”. Valetti v. Commissioner, 3d Cir., 1958, 260 F.2d 185, 188. Accord, Goldberg v. Commissioner, 5th Cir., 1956, 239 F.2d 316. To justify a fraud penalty the circumstances surrounding the failure to file returns must strongly and unequivocally indicate an intention to avoid the payment of taxes. Powell v. Granquist, 9th Cir., 1958, 252 F.2d 56; cf. Bender v. Commissioner, 7th Cir., 1958, 256 F.2d 771.
Taxpayer contends that his willful failure to file was not and could not have been the result of a scheme to cheat the government out of taxes which he was obligated to pay, because he did not believe that he owed any taxes. We are aware that the Tax Court disbelieved this testimony and that it is not for this appellate court to assess taxpayer’s credibility as a witness. However, the Commissioner’s heavy burden of proof on the issue of fraud cannot be satisfied by mere disbelief of taxpayer’s testimony. The record must contain some convincing affirmative indication of the required specific intent.
Taxpayer’s delinquent returns lend considerable credibility to his testimony concerning the years from 1945 through 1951. Taking into account the expenses which he believed he was entitled to deduct plus the credit for income taxes withheld, taxpayer calculated that he had overpaid his taxes for each of those years by amounts in the order of fifty to one hundred seventy-five dollars. These delinquent returns were not fraudulent, and there is no showing or argument that any of the deductions claimed but disallowed were fictitious. Only because taxpayer was unable to substantiate them with the kind of records which the Commissioner properly demanded was it determined that he owed additional taxes for each of these years except 1948. And for that year it is agreed that he owes nothing. All of this corroborates taxpayer’s testimony that at the end of each of these years he believed that he owed the government no taxes beyond what had already been withheld from his salary.
In the face of this evidence, the Commissioner offered little to sustain his burden of proving fraud for the years 1945 to 1951. Apart from evidence which, as already pointed out, builds a very strong ease of willful failure to file without demonstrating the intent which accompanied that failure, the only evidence offered by the Commissioner was the taxpayer’s failure to keep systematic and detailed records of income and expenditures of his law practice. The significance of this omission is minimized by the fact that from 1945 through 1951, taxpayer’s practice was very small, never yielding receipts in excess of $2200 in any year and, in several years, yielding less than $1000. Indeed, government agents conceded that, even without such records, they were able to determine the amount of taxpayer’s earnings from bank deposit statements retained by him, and that there was no indication that taxpayer had received additional income not reflected in these statements. Thus, the only needed information which was lacking because of the taxpayer’s failure to keep books was a record of the expenditures which he made in the regular course of his law practice. In these circumstances, any inference that taxpayer’s unbusinesslike procedure was intended to conceal tax liability is too weak to achieve the clear and convincing character which proof of fraud must exhibit.
The years 1952, 1953 and 1954 present a different picture. In 1952, taxpayer’s gross income from his law practice increased very substantially to $4,169.70, four times as much as it had been in any year before 1951 and twice as much as it had been in 1951, while his deductible expenses did not increase proportionately. Moreover, withholdings did not increase substantially. As a consequence, the tax withheld from taxpayer’s salary in 1952 was more than $500 short of covering his total tax liability. Even his own calculations for 1952, made several years later, failed to disclose an overpayment such as those he consistently claimed for the years before 1952. And for 1953 and 1954, taxpayer’s delinquent returns admitted substantial deficiencies. Thus, the record indicates that at the end of 1952 and thereafter, even a rough calculation, honestly made, would at least have shown the taxpayer that there was need for a more careful analysis of income and expenditures to substantiate or dissipate his hope that no additional taxes were due. His disingenuous avoidance of accurate knowledge when the need for such knowledge must have been apparent was in itself a substantial indication of fraudulent intent.
We conclude, therefore, that the evidence of fraud was sufficiently clear and convincing to justify the imposition of fraud penalties for the years 1952, 1953 and 1954. Not so, however, for the years from 1945 through 1951.
Our next consideration is the method employed by the Tax Court in computing fraud penalties. Section 293(b) of the 1939 Code provides that “if any part of any deficiency is due to fraud”, a fraud penalty shall be imposed at the rate of “50 per centum of the total amount of the deficiency”. In this case the Tax Court added 50% to the taxpayer’s total liability for each year as a fraud penalty, without having subtracted either the amount withheld from salary or the amount of tax reported on the delinquent return.
In section 271(a) as amended, 58 Stat. 245 (1944), “deficiency” is defined as “the amount by which the tax imposed by this chapter exceeds * * * the amount shown as the tax by the taxpayer upon his return, if a return was made * * Section 271(b) (1) explicitly provides that “[t]he tax imposed by this chapter and the tax shown on the return shall both be determined -* * •» without regard to the credit under section 35 [for amounts withheld from wages] * * This language makes it clear that neither the existence nor the amount of the “deficiency” of a taxpayer who has failed to file a return is affected in any way by the existence of a withholding credit partially or fully offsetting his tax liability. Moreover, in the circumstances of this case the “total amount of the deficiency”, upon which the fraud penalty is based, must be the entire amount of the “tax imposed” for the year unless, under the section 271 definition of deficiency, it is permissible to deduct from that total tax liability the amount of tax shown on the delinquent return filed several years after the due date. We think this is not permissible.
1952 is the first year as to which we have concluded that fraud was proved. When the deadline for filing a 1952 tax return passed, a “deficiency” in the amount of “the tax imposed” came into existence. Because no return had then been filed, there simply was no “amount shown as the tax by the taxpayer upon his return” to be deducted from the total tax liability in computing the “deficiency”. And since the failure to file was fraudulent the taxpayer’s liability at that time included a fraud penalty measured by that deficiency. Thus, taxpayer has to take the position that although, from 1953 until his delinquent filing in 1957, he was liable for a 1952 fraud penalty measured by his total 1952 tax liability, he could terminate that liability for fraud by filing a delinquent return admitting his full tax liability. It is not surprising that the Tax Court has consistently refused to give any such effect to a delinquent filing, reasoning that the “return” contemplated by section 271 is a timely return. Charles F. Bennett, 1958, 30 T.C. 114; Maitland A. Wilson, 1946, 7 T.C. 392; see George M. Still, Inc., 1953, 19 T.C. 1072, aff’d mem., 2d Cir., 1955, 218 F.2d 639 (collection of fraudulent return by amended return does not affect computation of fraud penalty) ; cf. Simon v. Commissioner, 8th Cir., 1957, 248 F.2d 869 (carryback deduction does not affect computation of fraud penalty). We think this conclusion is consistent with the language and the scheme of the 1939 Code. It validates the Tax Court’s computation of 1952 and 1953 fraud penalties. The parties recognize that section 6653(c) (1) of the 1954 Code, which is applicable to the 1954 fraud penalty, has now explicitly provided that only a timely return is to be considered in determining the existence and amount of the underpayment which is the measure of the fraud penalty.
Finally, the Commissioner asks us to reverse the Tax Court’s holding that Martha Cirillo, unlike her husband, is not liable for fraud penalties. The Commissioner argues that the wife’s action in joining her husband in filing non-fraudulent delinquent returns for the years in question was sufficient to make her too liable for the fraud penalties.
Earlier cases have decided that a wife who is a party to a fraudulent joint return may be held liable for the fraud penalties assessed on account of her husband’s fraud in preparing that return, notwithstanding that she herself had no income, did not entertain any fraudulent intent, and, indeed, did not know that the return was fraudulent. Estate of Ginsberg v. Commissioner, 5 th Cir., 1959, 271 F.2d 511; Furnish v. Commissioner, 9th Cir., 1958, 262 F.2d 727, 731-734; Kann v. Commissioner, 3d Cir., 1953, 210 F.2d 247, cert. denied 1954, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1109; Boyett v. Commissioner, 5th Cir. 1953, 204 F.2d 205; Howell v. Commissioner, 6th Cir., 1949, 175 F.2d 240; Meyer J. Safra, 1958, 30 T.C. 1026, 1037. The feature which distinguishes the present case from those earlier cases and makes it one of first impression is that the joint returns here involved were themselves not fraudulent; rather fraud occurred and penalties attached earlier when the husband, with fraudulent intent, failed to file timely returns.
Whether this distinction warrants a different result depends upon the interpretation given to section 51(b) (1) of the 1939 Code, ch. 2, 53 Stat. 27, as amended, 62 Stat. 115 (1948) (now Int. Rev.Code of 1954, § 6013(d) (3)), which provides that where a joint return is filed “liability with respect to the tax” shall be joint and several. It is reasonable to view “the tax” for which the return-signing wife is liable as including both the amount stated in the joint return and any deficiency assessments on account of the incorrectness, inadequacy or bad faith of that filing. If a wife, however innocently, joins in a fraudulent return, any additional assessment for fraud is a tax obligation created by that filing and measured by the difference between the tax that should have been reported and the amount the spouses jointly reported. This rationale supports the cited cases involving fraudulent joint returns.
But in the present case the fraud penalty is neither imposed for nor measured by any deficiency based upon the joint return. Indeed, we have already pointed out in another connection that the deficiency upon which the present fraud penalty is based arose when the husband, with intent to evade taxes, failed to file a timely return. That deficiency did not subject the wife to any liability. Joseph A. Mundy, 1955, 14 CCH Tax Ct.Mem. 1067. In these circumstances, the fraud penalty is in no way dependent upon the joint return. For this reason it may reasonably be regarded as distinct from the tax liability which section 51(b) (1) imposes as a consequence of signing a joint return. Of course, this analysis leaves a wife who elects to sign a joint return liable for the tax shown on the return and any deficiencies which may be determined in connection with that filing. Neither the language of the statute nor any consideration of equity or tax policy provides a persuasive reason for imposing a broader liability. Accordingly, we agree with the Tax Court that Mrs. Cirillo did not become liable for fraud penalties.
So much of the Tax Court’s decision as imposed fraud penalties for the years 1945 to 1951, inclusive, will be reversed. Otherwise, the decision will be affirmed.
. The Tax Court’s computation was as follows:
* For each year the additional fraud penalty was 50% of the amount shown in. this column.
. Taxpayer complains that the admission into evidence of the record of his conviction of willful failure to file returns was error, and that, in any event, the court should have allowed him to show the limited scope of the evidence on which that conviction was based. He is mistaken. His conviction was admissible as evidence of the fact that his failure to file returns for the two years in question was willful, Richard F. Smith, 1958, 31 T.C. 1, 9; see Stagecrafters’ Club, Inc. v. District of Columbia Division of American Legion, D.D.C.1953, 111 F.Supp. 127, aff’d mem., 94 U.S.App.D.C. 74, 211 F. 2d 811; cf. Masters v. Commissioner, 3d Cir., 1957, 243 F.2d 335, 338-339 (admissibility of conviction on nolo contendere plea), if not as a conclusive determination of that fact, compare Meyer J. Safra, 1958, 30 T.C. 1026, 1034-35, nonacq., 1962 Int.Rev.Bull. No. 43, at 8, with Emich Motors Corp. v. General Motors Corp., 1951, 340 U.S. 558, 568-569, 71 S.Ct. 408, 95 L.Ed. 534 (dictum).
. Of course, tlie burden of proof on this issue was on the taxpayer. Burka v. Commissioner, 4th Cir., 1950, 179 F.2d 483.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
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songer_state
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14
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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".
W. James BROWN, an attorney on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Frank J. McGARR, Chief Judge of the United States District Court for the Northern District of Illinois, et al., Defendants-Appellees.
No. 84-1591.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 12, 1985.
Decided Oct. 3, 1985.
Rehearing and Rehearing In Banc Denied Oct. 31, 1985.
Edward T. Garney, Chicago, Ill., for plaintiff-appellant.
Nancy K. Needles, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendants-appellees.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
COFFEY, Circuit Judge.
The plaintiff, James Brown, appeals the district court’s holding that the Northern District of Illinois’ adoption of rules creating a trial bar to improve advocacy in the federal courts and to supervise the practice of law did not deprive him of property without due process of law. We Affirm.
I
The district court made the following findings of fact when granting the defendants’ summary judgment motion and they are not in dispute. As part of a study of the competency of trial lawyers practicing in the federal counts, the Devitt Committee, appointed by Chief Justice Burger, surveyed the legal community and held public hearings around the country. The Devitt Committee published two reports of its findings and, in both reports, recommended, inter alia, that federal district courts impose a rule requiring attorneys to have trial experience before being allowed to appear alone in trials. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations as part of a pilot program to improve the quality of advocacy in the federal courts. The Austin Committee published the proposed rules in the Chicago Law Bulletin and the Chicago Bar Record and held a public meeting on the proposed rules. On July 12,1982, after this extensive period of public examination and comment, the District Court for the Northern District of Illinois adopted rules requiring attorneys to belong to a “trial bar” before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case. The requirement of membership in the trial bar applies both to new admittees and to attorneys previously admitted to the bar of the Northern District of Illinois. In order to practice before the court as a member of the trial bar, an attorney must have four “qualifying units” of trial-type experience. N.D.Ill. General R. 3.00C(7). An attorney may receive a qualifying unit for participating as lead or as co-counsel at a trial, observing a trial in which a member of the trial bar supervises the observation, or participating in an approved trial advocacy course. Id. at C. At least two of the four qualifying units must be obtained by participating in actual trials as lead or as co-counsel. Id. at C(7). The court may, in exceptional circumstances, waive the trial bar membership requirement if the client consents to representation by a non-member. Id. at 3.10D. Prior to the adoption of the rules creating the trial bar, any member in good standing of the Northern District of Illinois Bar could appear alone in any proceeding.
The plaintiff, James Brown, was admitted to the bar of the Northern District of Illinois in 1977 but does not possess a sufficient amount of trial experience to be eligible for trial bar membership. After the rules were adopted, the plaintiff filed suit as a representative of a class of attorneys deprived of the right to appear in all proceedings without assistance, alleging that the rules of the Northern District of Illinois violated the Fifth Amendment prohibition against deprivation of property without due process of law. Because the subject matter of the complaint involved rules adopted by the Judges of the Northern District of Illinois, the case was reassigned to Senior Judge Myron L. Gordon of the Eastern District of Wisconsin. Judge Gordon held, 583 F.Supp. 734, in ruling on the defendants’ motion for summary judgment, that the rules violated neither the plaintiffs’ rights to substantive nor to procedural due process.
II
Brown asserts that the creation of the Federal Trial Bar of the Northern District of Illinois, in effect, disbarred him and that he had a due process right to “notice calculated to convey information regarding his disbarment pursuant to the adoption of the rules and an opportunity to defend against such action.” Brown also argues that neither the district court’s power to specify bar admission standards, nor its power to disbar attorneys for “deceit, malpractice, or other gross misconduct,” nor its power to make or amend rules authorize the court to deny an attorney his “vested right to practice law” (“a property right in his law license”) without affording the attorney “his due process rights to a hearing, to present evidence, to cross examine adverse witnesses, and to know upon what basis the defendants determined that they and other individuals of the class were not qualified to be trial attorneys.” Moreover, the plaintiff contends that not only the district court but also Congress lacked the authority to promulgate the rules creating the trial bar because the class’ “previously granted licenses to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited.” Finally, the plaintiff asserts that, even if the district court’s adoption of the rules involves a “basically legislative-type judgment,” our court should not apply the rule that “the fifth amendment’s requirements of individualized due process do not apply in the area of rulemaking.”
A. Adoption of the Rules was not a Disbarment Proceeding
By arguing that adoption of the trial bar membership rule in effect disbarred him for incompetence, Brown raises the issue of whether the imposition of the trial bar membership requirement was a proper exercise of the district court’s rule-making power or was an improper adjudication of his competence as an attorney. To determine whether an action was rule-making or adjudication, courts consider: (1) whether the action is generalized in nature, i.e., whether the action applies to specific individuals or to unnamed and unspecified persons; (2) whether the promulgating agency considers general facts or adjudicates a particular set of disputed facts; and (3) whether the action determines policy issues or resolves a specific dispute between particular parties. See United States v. Florida E. Coast R.R. Co., 410 U.S. 224, 244-46, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973). “Disbarment ... is a punishment or penalty imposed on the lawyer.” Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968). A court conducting a disbarment proceeding must determine for itself the facts of the attorney’s conduct and whether that conduct had been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). Thus, the ultimate result of a disbarment proceeding is a finding, based upon the conduct and actions of an individual attorney, that the individual attorney is unfit. Unlike a disbarment proceeding focused upon specific incidents of misconduct by an individual attorney, the district court’s trial bar rules were adopted in response to fact finding that was not focused on individual attorneys. The trial bar rules of the Northern District of Illinois are part of a pilot program implementing suggestions to improve advocacy in the federal courts advanced by the Committee to Consider Standards for Admission to Practice in the Federal Courts (“Devitt Committee”). The Devitt Committee, a national committee appointed by Chief Justice Burger in 1976 to study advocacy of representation problems in the federal courts, surveyed 1,500 law related organizations, solicited the comments of the legal community, and held public hearings on, inter alia, causes of any perceived inadequacies of representation. Report and Tentative Recommendations of the Committee to Consider Standards of Admission to Practice in the Federal Courts to the Judicial Conference of the United States, 79 F.R.D. 187, 193 (1978). Additionally, the Federal Judicial Center simultaneously conducted a series of research projects designed to gather information about the level of performance of advocates in the federal courts. Id. Based upon the comments received by the Devitt Committee and the results of the Federal Judicial Center studies, the Devitt Committee concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” Id. at 196-97. The experience requirement was recommended “to insure a substantial probability of adequate trial performances.” Id. at 196-98. Thus, the trial bar membership requirement was not designed to infallibly identify competent attorneys; rather, the provision was adopted as a method of improving the standard of advocacy in the district courts by requiring the attorneys to present evidence to the court of training in trial advocacy— i.e., the qualifying units. We hold that the finding of a correlation between trial experience and competence as a trial attorney, upon which the trial bar membership rule is based, is generalized fact finding, was not focused upon the competence of an individual attorney, and was legislative in nature. We also hold that the experience requirement is a determination of a policy issue rather than a resolution of a specific dispute between particular parties. Specifically, the trial bar membership requirement was adopted to prevent problems caused by inexperienced trial counsel such as, “ ‘Piper Cub’ advocates trying to handle the controls of ‘Boeing 747’ litigation,” and “on-the-job-training” at the expense of the client. Burger, The Specialized Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L.Rev. 227, 231, 233 (1973). “Whatever the legal issues or claims, the indispensable element in the trial of a case is a minimally adequate advocate for each litigant.” Id. at 234 (emphasis added). The client’s interests are ill-served when an untrained attorney faces a seasoned and experienced opponent. “The young doctor just graduated from the finest medical school is not permitted to take scalpel in hand to perform delicate surgery without a skilled and seasoned surgeon at his side.” Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175, 177 (1974). Adoption of an experience requirement is a sound, and overdue, recognition that young attorneys, like young physicians, must be trained by experienced practitioners. Brown’s argument that the district court’s imposition of the trial bar membership requirement, in effect, disbarred him for incompetence mischaracterizes the nature of the district court’s action. We hold that, contrary to the plaintiff’s assertions of disbarment, the district court’s trial bar membership rule, imposes what we believe is a necessary and long needed qualification requirement upon present and future members of the district court bar who wish to have the opportunity to appear alone before the court in any proceeding and is not a finding that nonmembers of the trial bar are incompetent. Consequently, Brown’s argument that he was entitled to notice and the right to be heard because he was disbarred is groundless.
B. The Power to Impose the Qualification Requirement
The authority to adopt rules relating to admission to practice before the federal courts was delegated by Congress to the federal courts in Section 35 of the Judiciary Act of 1789, Act of September 25, 1789, Ch. 20, 1 Stat. 73, 92 now codified as 28 U.S.C. § 1654. In addition to § 1654, 28 U.S.C. § 2071 provides in part that “[t]he Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business.” Fed.R.Civ.P. 83, promulgated by the Supreme Court pursuant to its rule-making authority, specifies that, “[e]ach district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules.” The district court found, and we agree, that “[e]very federal court which has construed [28 U.S.C. §§ 1654, 2071 and Fed.R.Civ.P. 83] has held that they permit a federal district court to regulate the admission of attorneys who practice before it.” See, e.g., Matter of Roberts, 682 F.2d 105, 108 (3d Cir.1982); Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975); Sanders v. Russell, 401 F.2d 241 (5th Cir.1968).
In addition to the authority delegated by Congress, federal courts have the inherent power to regulate the conduct of attorneys and to disbar attorneys. Theard, 354 U.S. at 281, 77 S.Ct. at 1276; Ex Parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856); see generally State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932) (reviewing cases from the Middle Ages to the nineteenth century). The courts’ authority and responsibility for insuring the quality of attorney advocacy has long been recognized by the Supreme Court:
“The authority of the court over its attorneys and counselors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions in private life. The highest interests are placed in their hands and confided to their management. The confidence which they receive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission are intended to secure those qualities.”
Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540, 19 L.Ed. 285 (1869). “[T]he power of disbarment is necessary for the protection of the public in order to strip a man of the implied representation by courts that a man who is allowed to hold himself out to practice before them is in ‘good standing’ so to do.” Theard, 354 U.S. at 281, 77 S.Ct. at 1276. Accordingly, we hold that the adoption of the requirement of trial bar membership was within the district court’s authority to regulate the admission of qualified attorneys who practice before the court.
We now turn to the question of whether Brown’s “previously granted license[ ] to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited by Congress or the district court.” “The legislature may undoubtedly prescribe qualifications for the office [of attorney and counselor] to which [an attorney] must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of the ordinary advocations of life.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 379, 18 L.Ed. 366 (1866); see also Dent v. West Virginia, 129 U.S. 114, 122-28, 9 S.Ct. 231, 233-35, 32 L.Ed. 623 (1888) (physician’s license). “The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will ... tend to secure them against the consequences of ignorance and incapacity as well as deception and fraud.” Dent, 129 U.S. at 122, 9 S.Ct. at 233. The qualifications placed on the license of a professional must be reasonably related to the profession and attainable by reasonable study or application. Id. at 122, 9 S.Ct. at 233; Garland, 71 U.S. at 379-80; Schware v. Bd. of Bar Exam. of State of N.M., 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The state may exclude from practice those who are not qualified to hold a professional license. Dent, 129 U.S. at 122-23, 9 S.Ct. at 233. Cf. Theard, 354 U.S. at 278, 77 S.Ct. at 1274. To protect society against unqualified licensed professionals, the State may require a licensed professional to satisfy additional conditions after the license is granted. Dent, 129 U.S. at 123, 9 S.Ct. at 233. See, e.g., Wis.S.C.R. 30.01 et seq. (continuing legal education requirement); Wis.Admin.Code § Med. 13 (1977) (continuing medical education for physicians). The decision to apply conditions retroactively, like a decision to adopt retroactive economic legislation, satisfies due process if it is justified by a rational legislative purpose. Pension Benefit-Guarantee Corp. v. R.A. Gray & Co., — U.S. —, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984).
Public attention was drawn to the problem of inadequate trial advocacy by Chief Justice Burger’s 1973 lecture expressing grave concern about the problem. Burger, The Special Skills of Advocacy, 42 Fordham L.Rev. 227 (1973). Indeed, several federal court of appeals judges expressed agreement with the Chief Justice. See, e.g., Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974) (“Too many lawyers come into court today with only a diploma to justify their claims to be advocates. They are untrained and unadvised in the immensely practical work of litigation.” Id. at 176); Bazelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1 (1973) (“I come upon these ‘walking violations of the sixth amendment’ week after week in the cases I review.” Id. at 2). The Devitt Committee, appointed by Chief Justice Burger in 1976, surveyed federal district judges and found that forty-one percent of them believe that the problem of inadequate advocacy is severe. 83 F.R.D. at 219. Twenty-five percent of the attorneys’ performances in trials evaluated by the judges for the Federal Judicial Center Study were rated as “less than good.” Id. The judges also expressed their belief that, “as a direct result of lawyer inadequacy, the interests of the clients were not fully protected.” The Federal Judicial Center study also revealed a correlation between the quality of trial performances and the prior experience of the attorneys evaluated. Id. at 222. Moreover, a 1978 American Bar Association telephone survey of 599 lawyers chosen at random revealed that forty-one percent believed that lack of trial competency was a serious problem. Burger, Some Further Reflections on the Problem of Adequacy of Trial Counsel, 49 Fordham L.Rev. 1, 9 (1980). The impact on our justice system caused by inadequate trial lawyers was succinctly stated by Chief Justice Burger:
“As the complexity and volume of both civil and criminal litigation escalates, the quality of advocacy directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice. Far too many civil cases are currently being tried which experienced, well-trained lawyers would negotiate to settlement. There are too many cases taking four, five, or six days to try, which truly competent attorneys would try in a third that time — or less. Because of this, persons who are waiting to have their cases tried must wait longer. In civil cases the inadequacy translates into delays that increase the costs of obtaining judgment and rob even a just judgment of much of its value, the same kind of “economic larcency” which inflation works on all of us. Delays in criminal cases, when combined with our very liberal bail release concepts of today, may leave some persons on the streets who are ultimately going to be found guilty and confined. Conversely, there is the risk that some defendants who cannot gain release may be confined for long periods. Long trial delay with defendants at large means the public is placed in continuing jeopardy.”
Id. at 19-20.
As we have discussed, the Devitt Committee, after reviewing its surveys and the Federal Judicial Center Studies, concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” 79 F.R.D. at 196-97. The experience requirement of the trial bar membership rule was recommended by the Devitt Committee “to insure a substantial probability of adequate trial performance” in response to evidence of the serious problem of inadequate trial advocacy and is analogous to the continuing legal education requirement imposed by some states. See, e.g., Wis.S.C.R. 30.01 et seq. The Devitt Committee recommended that present members of the district court bars be required to satisfy the experience requirement because, “the data on inadequacy is drawn from present bar members spanning all age groups and that exempting all present members as well as all who become members prior to the effective date of the new rules will exempt the very individuals whose inadequate performances justify new standards.” 79 F.R.D. at 200. Courts have looked with increasing favor on measures designed to insure an acceptable level of competency in licensed professionals. See, e.g., Marrese v. Interqual, 748 F.2d 373 (1984), cert. denied, — U.S. —, 105 S.Ct. 3501, 87 L.Ed.2d 632 (1985) (physicians’ peer review). We hold that the experience requirement is reasonably related to the practice of law and attainable by reasonable study or application. Furthermore, we hold that retroactive application of the experience requirement does not violate due process because it is justified by a rational legislative purpose — maintaining a high standard of advocacy in the federal courts.
C. Procedural Due Process
The district court held that because adoption of the trial bar membership requirement was an exercise of rulemaking rather than adjudicatory power, the Fifth Amendment’s requirement of individualized due process did not apply. Brown argues that we should not apply this rule, drawn from Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), because the agency involved in the Bi-Metallic case was created by and answerable to a state legislature. Brown notes that the Supreme Court found in Bi-Metallic that when Congress passes legislation, individual “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Id. at 445, 36 S.Ct. at 142. The plaintiff urges that his individual rights were not protected because “he had no voice” in either the selection of the advisory committee that solicited comments from attorneys in the Northern District of Illinois and reported their findings to the Northern District or in the selection of the district court’s appointed judges. However, we need not resolve this issue of whether federal judges are answerable to Congress in the same manner in which federal agencies are answerable to Congress because an examination of the record reveals that Brown received notice and an opportunity to be heard. Cf. Pension Benefit, 104 S.Ct. at 2719. Whether an affected party must receive individual notice depends upon the character of the action. When individual interests are adversely affected by a legislation action, publication of the statute puts all individuals on notice of a change in the law of the jurisdiction; individual notice is not required. Texaco v. Short, 454 U.S. 516, 531-38, 102 S.Ct. 781, 793-97, 70 L.Ed.2d 738 (1982). “[I]t has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.” Id. at 536, 102 S.Ct. at 796. See also Atkins v. Parker, — U.S. —, 105 S.Ct. 2520, 2529, 86 L.Ed.2d 81 (1985). On the other hand, in an adjudicatory hearing, procedural due process requires that an individual whose interest is at stake must be given, “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). As to the requirement of an opportunity to be heard, the significance of the plaintiff’s loss must be balanced with the governmental interest at stake. Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970). The court must consider three factors:
“First, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved in the physical and administrative burdens that the additional or substitute procedural requirement would entail.”
Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).
By arguing that he should have received individual notice, Brown urges us to create an exception to the rule that the legislative publication of a statute satisfies the notice requirement of procedural due process. See Texaco, 454 U.S. at 538, 102 S.Ct. at 797. We need not address Brown’s questionable contention that individual notice of a legislative type action with retrospective aspects is constitutionally compelled because, as the record demonstrates, ample notice was given. Cf. Pension Benefit, 104 S.Ct. at 2719. The Devitt Committee’s soliciting information about the adequacy problem and proposed solutions was patterned after the “notice and comment” procedure of the federal Administrative Procedures Act. Devitt, Improving Trial Advocacy, 72 F.R.D. 471, 475 (1976). The district court found that the Devitt Committee conducted a lengthy inquiry, which included a survey of the legal community’s views and four public hearings, and published its first report in 1978. 79 F.R.D. 187 (1978). The Devitt Committee held additional hearings after the publication of its first report and issued a final report in 1979. 83 F.R.D. 215 (1979). Both reports recommended that the experience requirement for admission to the trial bar be applied to present members of district court bars. 79 F.R.D. at 199-200; 83 F.R.D. at 223. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations. In ruling on the defendants’ motion for summary judgment, the district court found that, “[t]he Austin Committee published the proposed rules in the March 26, 1981, issue of the Chicago Law Bulletin and in the Mar.-Apr. 1981 issue of the Chicago Bar Record and invited interested parties to submit their views. All interested attorneys were invited to attend and participate in an open meeting on the proposed rules held on Apr. 26, 1981.”
Addressing the issue of Brown’s loss, examination of the district court’s rules reveals that the loss he has suffered is that he cannot appear alone at the trial of a civil case, and he cannot appear alone in criminal proceedings. N.D.Ill. General R. 3.10. The plaintiff retains his right to appear alone in every aspect of civil litigation except the actual trial, i.e., filing the complaint, discovery, motions and status hearings. Id.
Balanced against this restriction on his right to practice, is the significant government interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district courts. The material reviewed by the Devitt Committee confirmed the existence of the inadequacy problem and supported Chief Justice Burger’s observation that inadequate trial advocacy, “directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice.” 49 Fordham L.Rev. at 19-20. Addressing the issue of how to improve the quality of advocacy, the Devitt Committee discovered, “no one has yet devised an examination which will test one’s ability to be a courtroom advocate.” 79 F.R.D. at 196. The Devitt Committee adopted the experience requirement to insure a substantial probability of adequate trial performances. Id. Thus, the record reveals that the procedure followed in adopting the rules adequately identified the problem, researched various solutions, solicited public comment on both the problem and possible solutions, and properly determined that the problem of inadequate trial advocacy could be solved in part by requiring attorneys to demonstrate their competence by satisfying the.experience requirements. The district court found, and we agree, that the Committees’ “notice and comment” procedures were elaborate and fair. Balancing the plaintiffs’ loss against the significant governmental (and consumer) interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district court, we hold that the plaintiffs received notice reasonably calculated to appraise them of the pendency of the action and an adequate opportunity to be heard.
The decision of the district court is Affirmed.
. Rule 3.00C provides:
"C. Definitions
(1) Testimonial proceedings: Testimonial proceedings are proceedings conducted in open court before a District judge, U.S. magistrate, bankruptcy judge or trial judge of the state court in which the oral testimony of a witness is presented and the rules of evidence are applicable. Procedures limited to taking the deposition of a witness do not constitute testimonial proceedings for purposes of this Rule.
(2) Qualifying trial: A qualifying trial is either (a) a trial lasting at least one day in a trial court of record, involving substantial testimonial proceedings and going to the merits, or (b) an evidentiary hearing before a trial court of record equivalent to a trial in which testimonial evidence going to the merits is taken.
(3) Participation unit: A person is credited with one participation unit for each qualifying trial in which he/she participates as the lead counsel or the assistant to the lead counsel. Where a qualifying trial lasts more than three days, the person is credited with one additional participation unit for each three full days of trial in excess of the first three days. A maximum of four participation units can be credited for one trial.
(4) Observation unit: A person is credited with one observation unit for each qualifying trial he/she observes in which a member of the trial bar of this Court supervises the observation and consults with the person about the trial.
(5) Simulation unit: A person is credited with a simulation unit where, as part of a law school or continuing education course, he/she satisfactorily participates in a simulated trial that is recognized by the District Admissions Committee as being adequately supervised. The supervisor of the simulated trial may certify that the person’s performance was satisfactory.
(6) Qualifying units of trial experience: Participation units, observation units and simulation units as defined in this Rule are qualifying units of trial experience.
(7) Required trial experience: Required trial experience consists of four qualifying units of trial experience, at least two of which are participation units."
. Rule 3.10D provides:
“D. Waiver and Exceptional Cases
A judge may grant permission in a civil or criminal proceeding pending before him/her to an attorney admitted to the bar, but not to the trial bar, to appear alone in any aspect of the matter only upon written request by the client and a showing that the interests of justice are best served by waiving the experience requirements otherwise required by these Rules. Such permission shall apply only to the proceeding in which it was granted. Granting of such permission shall be limited to exceptional circumstances.”
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_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Harold HAMILTON, Appellant.
No. 77-2900.
United States Court of Appeals, Ninth Circuit.
Feb. 6, 1978.
Robert J. Lyman (argued), of Debus, Busby & Green, Phoenix, Ariz., for appellant.
John G. Hawkins, Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee.
Before WRIGHT and HUG, Circuit Judges, and INGRAM, District Judge.
Of the Northern District of California.
PER CURIAM:
Appellant asks this court to vacate convictions for two drug-offenses to which he pleaded guilty in the district court.
FACTS:
On March 3, 1977, Hamilton withdrew a general plea of not guilty and substituted guilty pleas on two counts of a four-count indictment. Pursuant to a plea agreement, the prosecutor successfully moved to dismiss the remaining counts. Hamilton moved to withdraw his plea after consecutive sentences were imposed. He appeals from the denial of that motion.
At the hearing on the change of plea, the trial judge relied on the prosecutor to advise appellant of the potential penalties on each of the two counts. The judge asked Hamilton, specifically whether he understood the penalties as explained by the prosecutor. Hamilton responded that he did. Neither the prosecutor nor the judge expressly informed Hamilton that the sentences could run consecutively.
Hamilton contends that his conviction must be vacated because the trial judge himself did not explain the potential penalties and because he was not told of the possibility of consecutive sentencing.
This appeal squarely presents the question of what procedures must be followed by a trial judge to satisfy the requirements of Fed.R.Crim.P. 11 governing acceptance of guilty pleas.
DISCUSSION:
Fed.R.Crim.P. 11 reads:
Rule 11. PLEAS
(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; .
Prior to its amendment in 1975, Rule 11 required only that a judge determine that a defendant’s plea was made with an understanding of its “consequences.” See Notes of the Advisory Committee on 1966 Amendments to Rule 11, reprinted in 8 Moore’s Federal Practice K 11.01[3] at 11-6 (1977).
If Rule 11’s requirements are not met, the defendant must be given the opportunity to plead anew. McCarthy v. United States, 394 U.S. 459, 471-472, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
1. Consecutive Sentences.
Hamilton argues that Rule 11 requires a judge to advise a defendant of the possibility of consecutive sentences before a guilty plea is entered. The 1975 version of the rule “summarizes roughly the holdings of the post-McCarthy decisions” interpreting the word “consequences.” J. Bond, Plea Bargaining and Guilty Pleas 84 (1977).
Those decisions held that any factor which necessarily affected the maximum term of imprisonment was a Rule 11 “consequence.” E. g., United States v. Myers, 451 F.2d 402, 404 (9th Cir. 1972). However, they did not require explanation of the possibility of consecutive sentencing, reasoning that the court’s power to impose consecutive sentences is explained implicitly “in the separate explanation of the possible sentences on each count.” Paradiso v. United States, 482 F.2d 409, 415 (3d Cir. 1973) (acknowledging that better practice would be to specifically advise); see also cases cited infra at n.4.
This reasoning is equally persuasive under the amended rule. Although at first glance the Notes of the Advisory Committee on 1975 Amendments to the Federal Rules of Criminal Procedure appear to suggest a contrary conclusion, they do not. They indicate that the objective of the 1975 amendments was to insure that a defendant knows the maximum sentence a judge may impose. Notes of the Advisory Committee on 1975 Amendments to Rules, Fed.R. Crim.P. 11, reprinted in 8 Moore’s Federal Practice ¶ 11.01[4] at 11-7 to 11-18 (1977) (hereinafter 1975 Committee Notes).
The 1975 Committee Notes, however, interpreted the rule as promulgated by the Supreme Court, prior to its alteration in Congress. The rule as originally proposed required disclosure of the “maximum possible penalty provided by law for the offense to which the plea is offered.” Id. at 11-9 (emphasis added).
The proposed rule thus reaffirmed the proposition that a defendant need be specifically advised of possible sentences only with respect to each offense. The 1975 Committee Notes suggest that because the penalty for an offense appears on the face of the statute defining the crime, a judge can ascertain exactly what to tell a defendant: “Giving this advice tells a defendant the shortest mandatory sentence and also the longest possible sentence for the offense to which he is pleading guilty.” Id. (emphasis added).
In Congress the proposed rule generated controversy for its failure to enumerate important rights that are waived by offering a plea of guilty. Those were enumerated by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When the House Judiciary Committee reported the measure which became Rule 11, the rule had been modified to include a requirement that a defendant be advised of the rights waived by a plea and the phrase, “for the offense to which the plea is offered,” was deleted from the section regarding advice about potential penalties. See H.R.Rep.No. 247, 94th Cong., 1st Sess. 21 (1975), reprinted in [1975] U.S.Code Cong. & Admin. News, p. 674, 693.
It appears that clearer explanation of the rights discussed in Boykin v. Alabama, supra, was the purpose of the committee’s revisions. We think that the accompanying deletion was merely a technical amendment to the rule’s text rather than an intentional enlargement of the judge’s duty to inform.
Although one could argue that Congress, in deleting the phrase, intended to require disclosure of the possibility of consecutive sentences, in the absence of an indication of such intent, we think amended Rule 11 was meant merely to simplify a judge’s task by emphasizing that the crucial consequences of entering a plea which must be explained to a defendant are the sentencing consequences, rather than other, less direct, implications of entering a guilty plea. See 1975 Committee Notes, supra at 11-10 (by implication). See generally J. Bond, Plea Bargaining and Guilty Pleas 148 (1975) (noting pre-amendment confusion in classifying consequences as direct or indirect). Cf. Sanchez v. United States, 572 F.2d 210 (9th Cir., 1977) (parole revocation is a collateral consequence).
Hamilton was advised by the prosecutor of a possible 15-year sentence, a $25,-000 fine, and a three-year special parole term (by the judge’s interjection) as to each of the two counts. The court reasonably concluded that this explanation implicitly alerted Hamilton to the possibility of consecutive sentencing. We agree.
2. Reliance on the Prosecutor.
Relying on McCarthy v. United States, supra, 394 U.S. at 471-72, 89 S.Ct. 1166, Hamilton contends that the trial judge’s reliance on the prosecutor to inform him of possible penalties renders his plea invalid and affords him the opportunity to plead anew.
The judge asked Hamilton whether he understood the penalties as explained by the prosecutor. That procedure satisfied the pre-1975 rule’s command that the judge determine that a defendant understands the consequences of his plea. United States v. Yazbeck, 524 F.2d 641, 642-43 (1st Cir. 1975) (per curiam) (dictum). Accord United States v. Coronado, 554 F.2d 166, 173-74 & nn. 11 & 12 (5th Cir. 1977) (direct appeal from conviction on a plea entered under the former version of Rule 11). The question remains whether it met the post-amendment requirement that the “court address the defendant personally” and “inform him of, and determine that he understands” the penalties that may be imposed. See id. at 174 n.12.
Requiring the court to inform a defendant of penalties does not necessarily mean that the words must literally issue from the judge’s lips. We conclude that a reasonable interpretation of Rule 11 is that it means a judge must insure that the defendant understands the possible penalties before his plea is accepted.
The court can, within certain limits, satisfy the requirement by directing that another advise the defendant in the court’s presence. The crucial requirement is that the judge be satisfied that the defendant understands the possible sentences and that such understanding be apparent in the record.
Our conclusion conforms to McCarthy v. United States, supra, which instructed federal judges to spread a defendant’s state of mind on the record at the time of the plea in order to avoid resort to after-the-fact speculation. 394 U.S. at 467, 89 S.Ct. 1166. Furthermore, permitting partial delegation in a case such as this is supported by repeated admonitions that Rule 11 not become the vehicle to transform plea hearings into ritualistic performances. See McCarthy, supra, at 467 n.20, 89 S.Ct. 1166; Guthrie v. United States, 517 F.2d 416, 418 (9th Cir. 1975); United States v. Youpee, 419 F.2d 1340, 1344 (9th Cir. 1969). Finally, it is supported by some evidence that the draftsmen attached no new special significance to the word “inform” as used in ■ the 1975 version of the rule.
United States v. Crook, 526 F.2d 708 (5th Cir. 1976), upon which appellant relies, is inapposite. In Crook the judge completely delegated his responsibilities, allowing the prosecutor to conduct nearly all of the Rule 11 examination. Moreover, only the prosecutor questioned the defendant on the voluntariness of his plea. The reviewing court properly concluded that the potentially intimidating effect of prosecutorial questioning raised fatal doubts regarding the voluntariness of the plea. Id. at 710.
In this case the trial judge carefully advised the defendant of all Rule 11 matters except penalties. He satisfied himself that Hamilton understood the penalties as explained by the prosecutor. He failed to “inform” Hamilton of possible penalties only in a literal sense.
Moreover, Hamilton, unlike the appellant in Crook, does not challenge the voluntariness of his plea except insofar as he alleges it was uninformed. However, his understanding of the penalties is readily discerned from his recorded responses in the Rule 11 hearing transcript.
The procedure followed by the trial court was consistent with both the mandate of Rule 11 and the holding of McCarthy v. United States, supra. We caution district judges, however, that deviation from literal compliance with the rule should be undertaken only with the utmost caution to insure that the record reflects observance of the rule’s substantive import.
In this case the requisite caution was displayed. The convictions are affirmed.
. The transcript of the Rule 11 hearing, with questions by the prosecutor, reads in relevant part:
Q: Are you aware of the fact that these [two] charges carry with them penalties of 15 years each?
A: I am, sir.
Q: And a possible fine of $25,000?
A: Yes, sir.
THE COURT: Just a moment. You have also got a minimum three-year special parole term.
Q (the prosecutor): And a minimum special parole term as to each count?
A: I understand.
Q: You have previously entered not guilty pleas as to all of these counts. Is it now your desire to withdraw as to Counts I and II your not guilty plea?
A: Right, and plead guilty.
Q: And enter a plea of guilty as to both counts.
A: Yes.
Q: You are aware of the maximum penalty as to each of those counts?
A: A 15-year maximum.
Q: And up to a $25,000 fine and a three-year special parole term as to each.
A: Yes.
THE COURT: That is a minimum three years.
. Boykin v. Alabama, supra, held that offering a guilty plea involves waiver of important constitutional rights (e. g., jury trial, confrontation, right against self-incrimination) and that a knowing, voluntary waiver of those rights cannot be presumed from a silent record.
. During four days of hearings, only one reference was made to Rule ll(c)’s sentencing provision. See Amendments to Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 36 (1975) (Charles Sevilla) (referring to United States v. Myers, 451 F.2d 402 (9th Cir. 1972)). See also Proposed Amendments to Federal Rules of Criminal Procedure: Hearing Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 2d Sess. (1974).
. See, e. g., Villarreal v. United States, 508 F.2d 1132, 1133 (9th Cir. 1974); Johnson v. United States, 460 F.2d 1203 (9th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 206, 34 L.Ed.2d 125 (1972); Hinds v. United States, 429 F.2d 1322, 1323 (9th Cir. 1970) (per curiam). See also United States v. Myers, 451 F.2d 402, 405 (9th Cir. 1972).
. The draftsmen noted that the former rule required the court to “inform” a defendant of the consequences of his plea. 1975 Committee Notes, supra at 11-9.
. However, in addressing the delegation issue, the court relied on authorities which dealt not with who should ask the questions, but rather with who should answer them. See 526 F.2d at 709-10. We think reliance on those cases was mistaken.
. Even as to penalties, the judge carefully followed the prosecutor’s explanation and interrupted to explain the special parole term.
. See n.1, supra.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
Santiago SANDOVAL, Petitioner-Appellant, v. Gerado ACEVEDO, Warden of East Moline Correctional Center, Respondent-Appellee.
No. 92-2089.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 26, 1993.
Decided May 20, 1993.
Robert P. Will, Jr. (argued), Will & Bris-coe, Waukegan, IL, for petitioner-appellant.
Thomas L. Ciecko, Deputy Atty. Gen., Martha E. Gillis (argued), Office of the Attorney General, Chicago, IL, for respondent-appellee.
Before POSNER and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
POSNER, Circuit Judge.
Santiago Sandoval was convicted by a jury in an Illinois state court of criminal sexual assault and was sentenced to 15 years in prison, the maximum punishment. After exhausting his state remedies he sought habeas corpus in a federal district court, lost, and appeals.
The only direct evidence of Sandoval’s guilt was the testimony of his victim (whom we shall call “S_” to protect her privacy), which we summarize: She was a divorced woman of 20 when she first met him, he a 27-year-old man who had been born in Panama, was divorced, and was working as a power lineman for Commonwealth Edison at a salary of $600 a week. After living together for several months they broke up because he would become violent and hit her when she refused his demands for sexual intercourse. They reconciled to the extent of resuming dating and were having ,a fine time at a night spot on New Year’s Eve when Sandoval became jealous upon being told by the disc jockey that S_ had been seen with another man. Sandoval calmed down and S_agreed to accompany him to his apartment to discuss their relationship. He again became angry, accused her of having slept with the other man, and finally announced “that he was going to fuck [her] one last time.” She resisted, but he dragged her on her back to the bedroom and then ordered her to roll over. Realizing that he meant to force her to submit to anal intercourse, she begged him not to have intercourse with her that way because they had had anal sex twice before and it had hurt her very badly. After forcibly sodomizing her, he compelled her to perform fellatio on him.
She fled, partially clothed, pounded on the first apartment door that she came to, and told the occupant in a manner that he described as “between anxious and hysterical” that she had been raped. He let her in, and she then called the police. This part of her testimony was corroborated by the occupant, and by the police officers who responded to her call and arrested Sandoval. The police also testified that she had bruises on her face.
Sandoval testified that while they were living together he and S_had had anal intercourse frequently, that she had enjoyed it and even on occasion had initiated it. When, at the nightclub on New Year’s Eve, he accused her of having been with another man, she tearfully confessed, and at his apartment afterward had initiated anal and oral sex with him. But he could not get over her betrayal of him with the other man and eventually ordered her to leave the apartment. She got upset, announced that “I’m going to screw you,” and stormed out of the apartment.
On direct examination of S_the prosecutor had asked her whether she had ever had anal sex with anyone besides Sandoval, and she had answered “No.” She had also testified that she had not dated since the rape. On cross-examination, defense counsel, after reminding S_of her denial that she had ever had anal sex with anyone besides Sandoval, said, “Now, you know a fellow named ...” — at which point the prosecutor interrupted with an objection. Out of the hearing of the jury, the defendant’s lawyer explained that he had a witness sitting in the hallway who would impeach S_’s testimony by testifying that he had had anal sex with her, that she had enjoyed it, and that he had seen her shortly before the trial “hanging all over a gentleman friend of hers” at a bar. The judge refused to allow the witness to testify but did instruct the jury, just before the closing arguments, that it was to disregard the testimony that S_had not had anal intercourse with anyone besides Sandoval.
The evidence was excluded on the authority of Illinois’ rape shield law, on which see the useful discussion in Comment, “Toward a Consistent Recognition of the Forbidden Inference: The Illinois Rape Shield Statute,” 83 J.Crim.L. & Criminology 395 (1992). The law is understood to forbid the introduction in a rape case of evidence concerning the victim’s sexual activities with persons other than the defendant. True, this is not quite what the law says. It says that in prosecutions for rape (called “criminal sexual assault” in Illinois) and related offenses, “the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill.Rev. Stat. ch. 38 ¶ 115-7(a). Evidence of sexual activity with other people besides the accused could often be described as evidence concerning — bearing on, related to — the past sexual conduct of the alleged victim with the accused. But that is not how the statute is interpreted. As explained in the decision of the Supreme Court of Illinois affirming Sandoval’s conviction, the statute limits evidence of the victim’s sexual activity to her activity with the defendant, period. People v. Sandoval, 135 Ill.2d 159, 176, 142 Ill.Dec. 135, 143, 552 N.E.2d 726, 734 (1990) (reversing the decision of the Illinois Appellate Court, which had reversed Sandoval’s conviction). The interpretation of the statute by Illinois’ highest court binds us, and establishes that the prosecutor violated state law when he asked S_about her history of anal intercourse with persons other than the defendant and that the defense lawyer violated state law when he tried to cross-examine her about it. The prosecutor is not authorized to waive the protections of the rape shield law — for they are protections as much for the rape victim as for the prosecution of rape cases — and if he does so this does not open the door to defense counsel to disregard the rape shield law in his cross-examination of the victim. Id. at 180, 142 Ill.Dec. at 140, 552 N.E.2d at 731.
But Illinois cannot, through a rape shield law or anything else, deprive a criminal defendant of his federal constitutional right to confront the witnesses against him, a right that has been held to imply the further right, though not one of unlimited extent, to cross-examine the prosecutor’s witnesses. Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-11, 39 L.Ed.2d 347 (1974); Stephens v. Miller, 989 F.2d 264, 267 (7th Cir.1993). In this as in most rape cases, the key witness, and only eyewitness (apart from the alleged rapist), was the victim of the alleged rape; and the essential part of her testimony — that she was forced against her will to submit to sexual intercourse with the defendant — was not directly corroborated, although there was some corroboration, as we shall see. The principle of the rape shield law, designed as it is to exclude evidence that even if relevant has little probative value but great capacity to embarrass and distract, evidence that is considered to shift the balance of proof too far in favor of the rape defendant, has been held to be constitutional. Michigan v. Lucas, — U.S.-, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). But the constitutionality of such a law as applied to preclude particular excidpatory evidence remains subject to examination on a case by case basis. Stephens v. Miller, supra, 989 F.2d at 267-268; Moore v. Duckworth, 687 F.2d 1063, 1065 (7th Cir.1982); United States v. Begay, 937 F.2d 515, 524 (10th Cir.1991).
Sandoval argues that once S_testified that she had never had anal intercourse with anyone besides Sandoval, and by so testifying buttressed her testimony that she had not consented to have anal intercourse with him on the night in question, defense counsel was entitled to impeach her testimony by asking her whether she had had consensual anal intercourse with X_, and if she denied that she had, to call X_to the stand and elicit testimony to the contrary from him. This line of inquiry would clearly have been precluded by the rape-shield statute, constitutionally applied, had she not testified about her history of anal intercourse. The essential insight behind the rape shield statute is that in an age of post-Victorian sexual practice, in which most unmarried young women are sexually active, the fact that a woman has voluntarily engaged in a particular sexual activity on previous occasions does not provide appreciable support for an inference that she consented to engage in this activity with the defendant on the occasion on which she claims that she was raped. And allowing defense counsel to spread the details of a woman’s sex life on the public record not only causes embarrassment to the woman but by doing so makes it less likely that victims of rape will press charges.
We must consider what difference it made that S_testified about her other sexual activities (or abstentions). If that testimony was irrelevant, the defense would not, under standard principles of evidence, have been permitted — and certainly would not have had a constitutional right — -to impeach the testimony with extrinsic evidence (that is, testimony by X_). Taylor v. National Railroad Passenger Corp., 920 F.2d 1372, 1375 (7th Cir.1990). But her testimony might have been thought relevant on the theory that it was calculated or at least likely to strengthen the prosecution’s ease by reducing the likelihood that she had consented to anal intercourse with Sandoval on the occasion in question. If so, the defense would have a stronger case for being permitted to rebut the testimony, if necessary by extrinsic evidence, lest the jury be left with a misleading impression. As we have emphasized, a rape shield statute cannot constitutionally be employed to deny the defendant an opportunity to introduce vital evidence, and impeaching evidence can be vital, J. Alexander Tan-ford & Anthony J. Bocchino, “Rape Victim Shield Laws and the Sixth Amendment,” 128 U.Pa.L.Rev. 544, 581-83 (1980), though whether or when impeachment by extrinsic evidence is constitutionally guaranteed is fortunately an issue we need not resolve. Compare Johnson v. Brewer, 521 F.2d 556, 562 (8th Cir.1975), with id. at 564 (dissenting opinion).
For if there was error of constitutional magnitude in excluding the particular evidence (which we do not decide), it was cured, or more precisely rendered harmless beyond reasonable doubt, by the judge’s instruction. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). We are well aware of the limited efficacy of most curative instructions — but not this one. When the judge instructed the jury to disregard S_’s denial of having engaged in anal intercourse with other men besides the defendant, the natural inference for the jury to draw — which is just the inference that the defendant would have wanted it to draw — was that she had had anal intercourse with other men. So the exclusion of the evidence that the defense wanted to offer did not harm the defense and therefore cannot be a ground for invalidating Sandoval’s conviction. In this respect the ease is like Moore v. Duckworth, supra. The victim of the alleged rape in that case was pregnant at the time she testified at trial. The defendant wanted to present evidence that she was pregnant by her boyfriend, not by him. The judge held that the evidence was inadmissible under the rape shield statute. We thought this an absurd interpretation of Indiana’s rape shield law, but bowed to it because it was the interpretation of the state’s highest court. But we added that “the absurdity of the Rape Shield Law cannot be overlooked if it denied [the defendant] a fair trial.” 687 F.2d at 1065. However, as the trial judge had employed strenuous and apparently successful efforts to prevent the jury from discovering that the rape victim was pregnant, we concluded that the defendant had not been unfairly harmed by the application of the rape shield law, and therefore could not obtain relief under the Constitution.
The next issue concerns the judge’s refusal to permit testimony about S_’s “hanging all over a gentleman friend.” The testimony was not excluded on the authority of the rape shield statute, presumably because it was not testimony about sexual activity — though that depends on how the term, which the Illinois rape shield law uses without defining, is interpreted. Comment, “Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence,” 1985 Wis.L.Rev. 1219, 1227-28 and n. 35. Also, the alleged incident of S_’s “hanging all over a gentlemen friend” did not occur prior to the alleged rape, but “prior” or “past” in rape shield laws is usually interpreted as prior to trial, rather than prior to the alleged rape. See United States v. Torres, 937 F.2d 1469, 1472 (9th Cir.1991), construing the federal rape shield provision, Fed.R.Evid. 412.
The evidence was not, however, such vital impeachment that its exclusion can be said to have deprived Sandoval of his constitutional rights. For the evidence of his guilt was very powerful despite the lack of direct corroboration for S_’s central testimony. Realistically, a jury called upon to decide guilt must compare the prosecution’s version of the incident giving rise to the case with the defense version. Spitz v. Commissioner, 954 F.2d 1382, 1384-85 (7th Cir.1992). The defense version asked the jury to believe that S_, after an extensive bout of sexual intercourse initiated by her and only reluctantly consented to by the pacific defendant, flew into a rage, bruised herself, ran half-naked into the hallway, and successfully impersonated a rape victim to a neighbor and two policemen. Anything is possible, but this is distinctly unlikely and its plausibility would not have been decisively enhanced had it been established that S_had exaggerated the effect of the rape when she testified that she hadn’t dated since the rape.
The last issue concerning the rape shield law brings us back to the mysterious Mr. X_An important part of S_’s testimony, it will be recalled, was that she disliked anal intercourse, found it painful, and begged Sandoval not to force her to have intercourse that way, implying that she might have consented, however reluctantly, to vaginal intercourse. He on the other hand, as we have noted, testified that she liked anal intercourse and initiated it on this and other occasions. If it could be proved that she had had and enjoyed anal intercourse with another man, never complaining about any pain, this could be thought not merely to contradict her testimony on an arguably collateral point (having to do with her sexual relations with other men) with a view to persuading the jury to disbelieve her testimony on the vital points, but to undermine her testimony that she did not consent to have anal intercourse with Sandoval on the night of the alleged rape, because pain was one of the reasons that she had offered for why she hadn’t consented. The Supreme Court of Illinois in Sandoval’s appeal held that the admission of X_’s evidence was barred by the rape shield law, 135 Ill.2d at 183, 142 Ill.Dec. at 145-46, 552 N.E.2d at 736-37, but that law, as we have said, cannot be allowed to prevent a defendant from putting on a defense to what is after all a very serious charge. And consent is, of course, a defense to rape.
But we do not understand defense counsel to have wanted to put on his witness waiting in the hallway for the purpose of impeaching S_’s testimony that she did not consent to have anal intercourse with Sandoval. So far as appears, Sandoval’s counsel would not have procured the witness had it not been for S_’s testimony about never having had anal intercourse with anyone else. He wanted the witness solely in order to contradict a body of testimony that the judge erased by his curative instruction. But if this is wrong and Sandoval wanted the witness also or instead in order to contradict S_’s testimony about consent, still we do not think its exclusion violated Sandoval’s constitutional rights. Sexual intercourse, whether vaginal or otherwise, is not uniformly pleasurable or painful. The fact that S_had had pleasurable anal intercourse with another man on another occasion would not show that she would have enjoyed having it with Sandoval on an occasion when he was enraged with her and wanted by penetrating her anally to humiliate and, quite possibly, physically hurt her. Indeed, by that logic rape shield laws would be unconstitutional to the core because their central aim is to prevent the drawing of an inference of consent from previous consensual intercourse with other men. This case is a little more difficult because the victim’s testimony was that she had found anal intercourse unpleasant with Sandoval when they were living together. This implies that she disliked the practice, an implication in tension with her having voluntarily engaged in it with another man — though of course we often consent to do things we don’t much like or even actively dislike.
But this just brings us back to the impeachment of her testimony that she had never had anal intercourse with anyone but Sandoval. The judge told the jury to disregard that testimony. The jury was left to ponder the implication that she had had anal intercourse with someone else. The jury surely realized that it undermined her contention that she found anal intercourse painful, and that by doing so it also undermined her testimony that she had not consented. Weighing all the facts and their implications, the jury convicted Sandoval. The thumb of the rape shield law was not on the balance; in effect, the judge’s instruction took that law out of the case. We can see this by supposing that S_had never testified about anal intercourse with other men. Then even without a rape shield law it is doubtful that testimony that she had enjoyed it with another man would be admissible, for it doesn’t, or at least shouldn’t, require a rape shield law to show that consent to sex with X on one occasion is not good evidence of consent to sex with Y on another.
Finally and unrelatedly, Sandoval challenges his sentence as excessive. The challenge can get nowhere. It was not raised in the Illinois supreme court, 16 Charles Alan Wright et al., Federal Practice and Procedure § 4007 at p. 554 (1977); and in any event a 15-year sentence for rape not involving serious physical injury, while severe, can hardly be thought so savage as to violate the limits, if any, which the Constitution places on the severity of prison sentences. Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 886 (1991). Sandoval challenges the following remarks by the sentencing judge: “I find it absolutely astounding that any human being would participate in this type of activity. Animals do not engage in this type of logic [?]. But animals react from instinct, and logically we are told that human beings are smarter than animals, because we have two matters that make us more superior. We can talk and we can reason and we are superior to animals. Sometimes I wonder.” And Sandoval points out that in another case this judge was rebuked by his judicial superiors for remarking, in sentencing a defendant for homosexual child abuse, “I cannot think of a worse crime than an aggravated sexual abuse crime. I can tolerate a murderer. I can tolerate a robber. I can tolerate a burglar. But when it comes to sex, you know, even an animal avoids fornication with an offspring from the same birth. You know, your act is very, very heinous. Your act is worse than that animal, at least the animal, by instinct, does different things, and a human being differs from an animal because we are supposed to know how to reason, how to think.” Quoted in People v. Zemke, 159 Ill.App.3d 624, 628, 111 Ill.Dec. 258, 260, 512 N.E.2d 374, 376 (1987). Although the accuracy, relevance, and tone of the judge’s remarks in sentencing Sandoval can be questioned, Sandoval points to no principle of constitutional law that would authorize a federal court to invalidate an otherwise lawful and constitutionally proper sentence because it did not appear to be the product of informed, measured consideration. It is not suggested that the judge took the defendant’s race, religion, or political opinions, or any other forbidden ground for punishment into account in determining the sentence. Cf. Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983); United States v. Neyens, 831 F.2d 156, 159 (7th Cir.1987).
The denial of habeas corpus is
AFFIRMED.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Martha L. BROWN, Plaintiff-Appellee, v. CAPITOL AIR, INC., Defendant-Appellant.
No. 723, Docket 85-7860.
United States Court of Appeals, Second Circuit.
Argued Jan. 30, 1986.
Decided Aug. 5, 1986.
Norman Leonard Cousins, New York City, for plaintiff-appellee.
Phillip D. Bostwick, Washington, D.C. (David J. Cynamon, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., of counsel), for defendant-appellant.
Before OAKES, WINTER and MINER, Circuit Judges.
WINTER, Circuit Judge:
Plaintiff Martha Brown brought an action in a New York state court on August 10, 1983, against Capitol Air, Inc. (“Capitol”) alleging various causes of action arising out of her forcible expulsion from a Capitol flight. That case is apparently pending in state court. Ms. Brown commenced the instant case as a separate action in the same New York state court on May 17, 1984, alleging a number of additional legal claims based on the same underlying events. The instant action was then removed to the United States District Court for the Eastern District of New York. Chief Judge Weinstein granted summary judgment against Ms. Brown but declined to impose sanctions under Fed.R. Civ.P. 11. Ms. Brown has not appealed; Capitol has.
This appeal raises the question whether a defendant who uses removal to a federal court to bifurcate litigation that would be most economically resolved as a single proceeding may recover sanctions under Rule 11 for what are additional and essentially unnecessary proceedings resulting from the removal. We answer the question in the negative and affirm the decision of the district court.
Both the pending state case and the instant action arose from events occurring on April 10, 1983, on Capitol Flight 220, originating in Los Angeles and terminating in New York. According to a flight attendant’s report written within a day after the flight, two women passengers became unruly on the leg of the flight between Los Angeles and Chicago. The flight attendants discovered that the women were drinking alcohol other than that served by the airline, in violation of Section 121.575 of the FAA regulations, 14 C.F.R. § 121.575(a), and asked the women to put the bottles away. Bad weather forced a delay on the Chicago to New York leg, and the plane was diverted to Philadelphia for refueling. According to the flight attendant’s report, the situation got worse, as the two women began singing songs about drugs and sex and shouting obscene language that offended other passengers. The flight personnel called the Philadelphia police, who took plaintiff and her sister into custody. Plaintiff was released within hours and returned home to New York by train.
Four days after the incident, plaintiff, a black woman, asked the Federal Aviation Administration (“FAA”) Office of Civil Rights to investigate the incident, claiming that she was not one of the passengers creating the disturbance and did not even board Flight 220 until it reached Chicago. She attributed her removal from Flight 220 to racial discrimination. This complaint triggered investigations by the FAA and the U.S. Department of Transportation Office of Civil Rights. In response to those investigations, Capitol submitted the flight attendant’s report and a written statement by the pilot. The FAA also received a passenger’s statement that the women causing the disturbance were indeed those who were taken off the plane by the police.
The FAA concluded that Ms. Brown had violated two FAA regulations concerning interference with a crew member and the drinking of alcoholic beverages not served by the airline. By letter of December 20, 1983, the FAA informed Ms. Brown that she was subject to a maximum penalty of $1,000 for each violation but offered to settle its claim for $500. Eventually, the FAA referred the violations to the United States Attorney for the Eastern District of New York to bring an action to assess and collect a civil penalty under 49 U.S.C. § 1473(b)(1) (1982). Ms. Brown did not defend the action, and a default judgment was entered against her in the amount of $2,000 on June 18, 1985. Meanwhile, on November 21, 1983, the Office of Civil Rights informed Ms. Brown that its investigation revealed that race was not a factor in her expulsion from the Capitol flight.
On August 10, 1983, Ms. Brown filed the first complaint against Capitol in state court alleging breach of contract, humiliation, statutory violations, false imprisonment, abandonment, and slander. Although there was diversity of citizenship between the parties and a sufficient amount in controversy, Capitol answered the complaint and allowed the time for removal to federal court to pass. See 28 U.S.C. § 1446 (1982).
Plaintiff’s second complaint in state court was served on Capitol on May 17, 1984. It alleged libel, slander, malicious prosecution, abuse of process, intentional infliction of emotional distress, and prima facie tort, and demanded $12 million in damages. The factual basis was again the events described above. Ms. Brown’s counsel, for reasons that are said to concern a statute of limitations problem, chose to bring this second case as a separate action with a view to consolidation with the prior suit rather than simply to amend the earlier complaint. As a result, removal to the federal court of the present action was permissible, a step that Capitol, represented by new counsel, immediately took. Thereafter, Capitol moved in the instant case for summary judgment and for sanctions under Rule 11.
Chief Judge Weinstein granted the motion for summary judgment but denied the motion for sanctions. Only Capitol has appealed.
We dispose first of a preliminary issue argued by the parties. Capitol bases its claim for sanctions, inter alia, on the failure of plaintiff’s counsel to make a “reasonable inquiry” into the factual and legal basis of the complaint before its filing as required by Rule 11. Plaintiff’s counsel in turn argues that this requirement of Rule 11 has no applicability to complaints filed in state court.
Rule 11, of course, does not purport to authorize sanctions for actions taken in state courts. It does, however, apply to proceedings following removal, Fed.R. Civ.P. 81(c), see Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1956), and sanctions may be imposed in appropriate circumstances for post-removal proceedings in the federal court. Capitol thus also argues that it is-entitled to sanctions for the actions it had to take to dispose of this matter after removal.
We may assume arguendo that plaintiff’s defense of her claim in federal court would justify sanctions under Rule 11, as not based on a reasonable belief that it was “well grounded in fact and [was] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law ...” Fed.R.Civ.P. 11. Even on that assumption, however, we do not believe that Capitol is entitled to sanctions under the unique circumstances of this case. The present action added only variations on legal themes to the action already pending in the state court, and, when consolidated with the latter, would not have required substantial additional resources to litigate. By failing to remove the first case and then removing the second, Capitol bifurcated this essentially unitary claim and effectively increased the costs of this litigation for itself, its adversary, and the courts.
In light of these circumstances and the purposes of Rule 11, it would be counterproductive to allow Capitol to recover sanctions from plaintiff for the largely superfluous proceedings in the federal court. One purpose of that Rule is to bring about economies in the use of judicial resources. Imposition of sanctions in these circumstances would reward one who caused diseconomies. Capitol had a legal right to remove the second case but no right to profit from that act under Rule 11.
In so ruling, we in no sense suggest that defendants who remove litigation from state to federal courts are not entitled to protection under Rule 11. We hold only that, in the very unique circumstances of this case, where removal effectively bifurcated what should have been a single action and thereby increased costs for everyone, the purposes of Rule 11 would not be served by imposition of sanctions on the plaintiff.
Affirmed.
. That Rule provides in pertinent part:
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record____ Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit____ The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading, motion, or other paper is signed in violation of this rule, the court ... shall impose upon the person who signed it, a represented party, or both, an appropriate sanction.
Fed.R.Civ.P. 11.
Question: Are there two issues in the case?
A. no
B. yes
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.
SHERIDAN FLOURING MILLS, Inc., v. CASSIDY et al.
No. 1502.
Circuit Court of Appeals, Tenth Circuit.
Dec. 14, 1936.
George T. Evans, of Denver, Colo. (A. W. Lonabaugh, of Sheridan, Wyo., on the brief), for appellant.
Thomas G. Carney, Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., Sewall Key, Andrew D. Sharpe, and Frederic G. Rita, Sp. Assts. to Atty. Gen., and Carl L. Sackett, U. S. Atty., of Cheyenne, Wyo., on the brief), for appellees.
Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
Writ of certiorari denied 57 S. Ct. 491, 81 L. Ed.
PER CURIAM.
Sheridan Flouring Mills, Inc., brought this suit for an injunction, interlocutory and permanent, enjoining Cassidy, as collector of internal revenue, and Sackett, as United States Attorney, from requiring the plaintiff to file a return under title 3 of the Revenue Act of 1936, § 501, 49 Stat. 1734, 26 U.S.C.A. § 345, and from collecting from it any tax imposed by the provisions of such title.
The bill set up the requisite jurisdictional facts and further alleged: That the plaintiff obtained an interlocutory injunction in the District Court of the United States for the District of Wyoming in Sheridan Flouring Mills, Inc., Plaintiff, v. Thomas K. Cassidy, individually and as Collector of Internal Revenue of United States et al., No. 2463 In Equity, restraining the defendants therein from collecting from the plaintiff therein, processing taxes under the provisions of the Agricultural Adjustment Act, on condition that the plaintiff pay into the registry of such court, monthly, an amount equal to the taxes accruing against it under the provisions of the Agricultural Adjustment Act (as amended [7 U.S.C.A. § 601 et seq.]) that pursuant to such order, it paid into the registry of such court amounts aggregating $48,574.95; that thereafter the court entered its final decree in such cause directing the payment to the plaintiff therein of the amounts so deposited in the registry of the court and that plaintiff received from the clerk of such court $48,574.95; that the provisions of title 3 of the Revenue Act of 1936 (sections 501-506 [26 U.S.C.A. §§ 345-345e]) are unconstitutional and void; that the provisions of 26 U.S.C.A. § 322 and note (Revenue Act 1936, §. 322) and sections 1670 to 1675, inclusive, providing for the credit or refund of overpayments of taxes and of taxes illegally collected, and for suits at law to recover overpayments of taxes and taxes illegally collected are inapplicable to taxes sought to be imposed and collected under the provisions of title 3, and that plaintiff is without an adequate remedy at law in the premises.
From an order denying the temporary injunction and a decree dismissing the bill, plaintiff has appealed.
After lodging its appeal here, plaintiff filed its petition in this court for a temporary restraining order pending appeal.
The provisions of title 3 here material read:
•“Sec. 501. Tax on net income from certain sources
“(a) The following taxes shall be levied, collected, and paid for each taxable year (in addition to any other tax on net income), upon the net income of every person which arises from the sources specified below:
“(1) A tax equal to 80 per centum of that portion of the net income from the sale of articles with respect to which a Federal excise tax was imposed on such person but not paid which is attributable to shifting to others to any extent the burden of such Federal excise tax and which does not exceed such person’s net income for the entire taxable year from the sale of articles with respect to which such Federal excise tax was imposed.
“(2) A tax equal to 80 per centum of the net income from reimbursement received by such person from his vendors of amounts representing Federal excise-tax burdens included in prices paid by such person to such vendors, to the extent that such net income does not exceed the amount of such Federal excise-tax burden which such person in turn shifted to his vendees.
“(3) A tax equal to 80 per centum of the net income from refunds or credits to such person from the United States of Federal excise taxes erroneously or illegally collected with respect to any articles, to the extent that such net income does not exceed the amount of the burden of such Federal excise taxes with respect to such articles which such person shifted to others.” 26 U.S.C.A. § 345.
“Sec. 503. Administrative provisions
“(a) All provisions of law (including penalties) applicable with respect to taxes imposed by Title I of this Act [subchapters A, B and C of this chapter], shall, insofar as not inconsistent with this title [subchapter], be applicable with respect to the taxes imposed by this title [subchapter].” 26 U. S.C.A. § 345b.
The asserted right to relief in equity is predicated upon two principal propositions :
1. That title 3 is unconstitutional.
2. That the provisions of 26 U.S.C.A. § 322 and note (Title 1 of the Revenue Act of 1936, 49 Stat. 1731) relating to refunds or credits of overpayments of income taxes and to suits at law to recover same, and the provisions of 26 U.S.C.A. §§ 1670 to 1675, inclusive, relating to abatements, credits, and refunds of taxes and penalties erroneously, illegally, or wrongfully collected and to suits at law to recover same, have no application to taxes collected under title 3 or that their application thereto is so doubtful as to render its remedy to pay the; taxes and sue to recover them back at law uncertain.
The appeal from the denial of an interlocutory injunction and the petition for a stay here have been argued and submitted.
We pass the constitutional question and assume, but do not decide, in disposing of the matters now before us, that title 3 is unconstitutional.
26 U.S.C.A. § 1543, provides:
“No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”
It is settled that, notwithstanding the provisions of section 1543, supra, a court of equity may grant injunctive relief as against the assessment or collection of a federal tax, where extraordinary and exceptional circumstances render its provisions inapplicable. Dodge v. Brady, 240 U. S. 122, 126, 36 S.Ct. 277, 60 L.Ed. 560; Hill v. Wallace, 259 U.S. 44, 62, 42 S.Ct. 453, 66 L.Ed. 822; Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 510, 52 S.Ct. 260, 263, 76 L.Ed. 422. In the cáse last cited, the court said:
“And this court likewise recognizes the rule that, in cases where con dainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring ‘the case within some acknowledged.head of equity jurisprudence, a suit may be maintained to enjoin the collector.”
Counsel for plaintiff assert that section 322 is limited to an “overpayment of any tax,” that is to an exaction in excess of the amount due, and that the payment of a tax exacted under an unconstitutional statute is not an “overpayment,” since no tax is due.
They further assert that the intent and purpose of title 3 is to exact from those who either did not pay or paid and recovered back processing taxes under the Agricultural Adjustment Act, a tax equal-to 80 per cent, of the amount of such processing taxes that were shifted to others, on the ground of their unjust enrichment; that it is contrary to the intent and purpose of title 3 to refund the taxes imposed thereunder, even though their exaction is illegal; and, therefore, the provisions with respect to refunds and credits above referred to are inconsistent with title 3 and inapplicable to-the taxes sought to be imposed thereby.
They say this intent to exact the tax irrespective of its legality is further manifested by the provisions of title 7 of the Revenue Act of 1936, §§ 901-917, 49 Staff 1747 (7 U.S.C.A. §§ 623 note, 644 et seq.), limiting the right to refunds of taxes paid-under the Agricultural Adjustment Act.
We doubt that the word “overpayment” should be construed so narrowly as to make it applicable only to excessive payments. But if it should be so construed, then the general provisions of section 1670, supra, become applicable, if the tax is illegal.
Title 3 is no part of the Agricultural Adjustment Act. It is a distinct and separate title of the Revenue Act of 1936. It undertakes to levy a tax on net income of every person arising from certain specified sources, to wit, from the sale of articles, with respect to which a federal excise tax was imposed but not paid and shifted to others; or from reimbursement received by such person from his vendors of amounts representing federal excise taxes, which such person in turn shifted to his vendees ; or from refunds or credits of federal excise taxes -erroneously or illegally collected, the amount of which was shifted to others. And we find nothing in its provisions inconsistent with the refund of a tax imposed and collected thereunder if it is an unconstitutional exaction.
Section 503 (a) of title 3 (26 U.S.C. A. § 345b (a) is a common method of adopting, by cross-reference, the administrative provisions for one form of tax for the administration of another form of tax. See the provision in title 4, Revenue Act of 1932, § 627, 47 Stat. 269 (26 U.S.C.A. § 1420 et seq. note). The purpose of the phrase, “insofar as not inconsistent with this Title,” was to exclude from the reference administrative provisions covered by title 3, such as the time for filing returns, and for making payment of taxes and extensions of time for payment of taxes. See section 503 (b) and (c) of title 3 (26 U.S.C.A. § 345b (b, c). We think it was not intended to render inapplicable the provisions of section 322 and sections 1670 to 1675, inclusive.
Furthermore, if title 3 is unconstitutional, section 503 (a) falls as an integral part thereof leaving section 322 and sections 1670 to 1675, inclusive, unaffected. An unconstitutional enactment cannot limit or impair plaintiffs rights and remedies under the last-mentioned sections. It follows that if title 3 is unconstitutional a tax paid thereunder is either an overpayment within the provisions of section 322 or an illegal tax within the provisions of section 1670. In other words, if plaintiff pays the tax and sues to recover it, and title 3 is constitutional, it will not be entitled to recover back the tax, and if it is unconstitutional, it will be entitled to recover back the tax notwithstanding any possible limitation sought to be imposed by section 503 (a) of title 3.
Moreover, in the brief filed herein by Hon. Robert H. Jackson, Assistant Attorney General, and his associate counsel, section 503 (a), supra, is construed as rendering section 322 and sections 1670 to 1675, inclusive, applicable to the taxes imposed by title 3. We are of the opinion that if the construction of title 3 and particularly section 503 (a) thereof is doubtful, this administrative construction would bind the Commissioner of Internal Revenue in any future dealings with the plaintiff with respect to the taxes imposed by title 3. See American T. & T. Co. v. United States, 57 S.Ct. 170, 81 L.Ed. - (decided Dec. 7, 1936.)
The order denying an interlocutory injunction is affirmed.
The petition for a temporary injunction pending the appeal herein is denied.
A temporary injunction restraining the defendants from requiring plaintiff to file a return and from collecting any tax under the provisions of title 3 is granted for a period of fifteen days from this date and for such further time as this court may order, to enable plaintiff to petition the Supreme Court of the United States for certiorari and fqr a temporary injunction restraining defendants from requiring plaintiff to file a return and from collecting any tax under title 3, pending a disposition of the petition for certiorari.
The defendants will be enjoined from assessing or collecting any penalties against plaintiff for failing to file a return or to pay any tax under title 3 within the period the temporary injunction of this court is in force.
Section 822, supra, in part reads:
“(a) Authorization. Where there has been an overpayment of any tax imposed by this chapter, the amount of such overpayment shall be credited against any income, war-profits, or excess-profits tax or installment thereof then due from the taxpayer, and any balance shall be refunded immediately to the taxpayer.”
Section 1670, supra, in part reads:
“Authority to malee abatements, wed- . its, and refunds
“(a) To taxpayers — (1) Assessments and collections generally. Except as otherwise provided by law in the case of income, estate, and gift taxes, the Commissioner, subject to regulations prescribed by the Secretary, is authorized to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected.”
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_respond1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MODERN PLATING CORPORATION, Respondent.
No. 15327.
United States Court of Appeals Seventh Circuit.
March 22, 1966.
Swygert, Circuit Judge, dissented.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul M. Thompson, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., for petitioner.
William B. Powell, Reno, Zahm, Fol-gate & Skolrood, Rockford, 111., for respondent.
Before DUFFY, SWYGERT and MAJOR, Circuit Judges.
MAJOR, Circuit Judge.
This case is here on petition of the National Labor Relations Board, pursuant to Sec. 10(e) of the National Labor Relations Act, as amended (Title 29 U.S. C.A. § 151 et seq.), for enforcement of its order issued against respondent on January 19, 1965. The Board’s decision and order are reported at 150 N.L.R.B. No. 115.
The alleged unfair labor practices occurred at Freeport, Illinois, where respondent is engaged in electroplating metals. No jurisdictional issue is presented.
The Board found, in agreement with the Trial Examiner, that the company violated Sec. 8(a) (1) of the Act by offering to grant a wage increase to employees to discourage their membership in the Union, by granting a wage increase to the employees for that purpose and by advising employees that they would lose rather than benefit from union representation.
Respondent resists enforcement of the order on the basis that there is no substantial evidence, when the record is considered as a whole, in support of the Board’s findings. With this contention we agree.
The incidents giving rise to the controversy took place around March 1, 1963. At that time respondent had 120 employees. There was no evidence of hostility on the part of respondent toward a union, and nothing to indicate other than an harmonious relationship between it and its employees.
In the last part of February 1963, a business representative of the Union (Lodge 1096, International Association of Mechanics, AFL-CIO) met with some of respondent’s employees, some fifteen or twenty of whom signed application cards and some began to wear union buttons in the plant.
On March 9, a group of employees consulted their supervisor about a wage increase. They were advised to send a delegation to the president’s office rather than to go en masse, and a group consisting of Frank Truman, Charles Eich-meier, Charles Nicklaus, James Thru-man, Robert Parker and Calvin Thompson went to the office of Richard Serva-tius, respondent’s president. The Board in its brief relates what purportedly took place at that time:
“Charles Nicklaus, acting as spokesman, asked Servatius whether it was true that his office was always open and that the men were free to come in and discuss matters with him. Serva-tius agreed that it was and Nicklaus said that the men had come in to ask for ‘a dime’ raise. Servatius then asked whether the men were speaking just for themselves or whether they were asking ‘for a union raise,’ that is, for the whole plant. Nicklaus said he referred to the whole plant.
“Servatius answered that he- could not afford it because he ‘had bills’ and was trying to get a new plant which would mean a lot of new bills coming up, but he pointed out that the men had ‘the best insurance in Freeport.’ The men stated that they, too, had bills, and Thompson remarked that it was necessary for him to hold two jobs to make ends meet. Thompson was wearing a Union button and Servatius asked him what it was and whether he was in the Union: Thompson said he was not. There was some further general talk and Servatius then asked, if a raise were considered, ‘would this union crap be dropped?’ Apparently, none of the employees answered this question, but Servatius then said that he would think it over and that the men could come back in 2 or 3 days and they would discuss it further.’’
This appraisement of what was said at the March 9 meeting is far more favorable to the Board than the record justifies, particularly that portion relied upon in support of its finding that the wage increases were promised and granted to discourage membership in the Union. Of the six employees who were present at the meeting, only three, James Thruman, Charles Nicklaus and Calvin Thompson, were witnesses. They all agreed that the purpose of the meeting was to make a request for an increase in wages. Only Thruman testified as to the “union crap” statement.. His testimony on this point was not corroborated by any other witness. On cross-examination he admitted that he heard nothing which connected the requested pay raise with the Union, as shown by the following:
“Q. During that conversation to which you have testified did you or anyone present make any reference to what wage rates would be in effect if the union got in?
“A. Not that conversation, I don't know. I didn’t no.
“Q. And you heard nothing or no one mention any wage rate that would be in effect if the union got in?
“A. If the union got in — no, I don’t recall that.”
Nicklaus who was spokesman for the group was not even certain that the word “union” was mentioned. He testified:
“Q. Did he [referring to Servatius] say anything about the union with the raise ?
“A. Well, we talked a little bit more about this raise part and he said that if he considered the raise would we consider — I wouldn’t quote, ‘union’, but would we consider dropping this mess, yes, would we consider dropping this mess that was going around there. I don’t know, he might have said union but I won’t swear to it.”
Thompson knew nothing about the “this union crap” statement; in fact, all that he remembered was that Servatius “looked at me and he asked if we was in the union, those who was wearing union buttons, and we said, no.”
Servatius admitted that after they asked for a raise he made inquiry as to the union buttons they were wearing and that:
“ * * * they requested a dime raise and they stated that this union talk would probably be stopped if they were granted this increase and I told them that we had been planning to give an increase of five cents an hour to anyone that hadn’t had a raise in the last 10 months.”
He further testified, without contradiction, that he told them that the company could not grant a 100 across-the-board increase but that he would give the request consideration and let them know in a day or two. He also stated that the company for three or four months had been considering a wage increase. On cross-examination he was asked:
“Q. * * * Do you recall saying to them, ‘Will all of this garbage talk be dropped’?
“A. After Nicklaus made that statement that the union talk would be stopped, I said, ‘You mean that union garbage will stop’, and he said, ‘Yes.’ ”
A day or two following the March 9 interview, Servatius stopped at Nicklaus’ work station and told him that there would be a 50 increase for all who had not had a raise within the preceding ten months. Two weeks later, fifty-two employees were given a 50 raise, one a 10^, and sixty-seven received no raise.
The record is silent as to the names of the fifty-three employees who received a wage increase. It is not even shown whether the six employees who attended the March 9 meeting received increases. There is no proof, not even a suggestion, that the wage increases were allowed on a discriminatory basis. All of the few employees who had signed union cards might have been included or all might have been excluded. Nothing is shown for certain other than that the increases were allowed in response to the request of the employees at the March 9 meeting and in conformity with a plan which respondent already had under consideration.
Even though we indulge in the dubious assumption that the Board’s findings as they relate to the March 9 meeting carry substantial support, it is not discernible how a reasonable inference can be drawn that wage increases were offered or allowed for the purpose of discouraging membership in the Union. Which could have been discouraged — the group to which increases were allowed or the larger group to which they were denied? It can hardly be the former because the increases were allowed by respondent at their request. If the increases had any effect on the latter group, it would have been an encouragement rather than a discouragement of their Union activities.
The Board cites three cases in support of its conclusion that the wage increases were allowed to persuade the employees to reject a union: N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435; Indiana Metal Products Corp. v. N. L. R. B., 202 F.2d 613, 620 (C.A. — 7), and N. L. R. B., v. Douglas and Lomason Co., 333 F.2d 510, 513-514 (C.A. — 8). None of these cases, with their widely different factual situations, is of any benefit to the Board here. For instance, in the Exchange Parts Company case the employees had not requested a meeting with their employer. There, the employer of its own volition, absent a request by its employees, took the initiative and announced increased benefits two weeks before a scheduled election.
The Board attempts to bolster its case with testimony concerning two widely separated and isolated statements made by supervisory employees and found to have been coercive. Employee Shenber-ger testified that Supervisor Stearns inquired of him, “How many guys had signed up for the union?” and that he replied, “A couple of them.” Further, “I believe, he said — he told us about the union- that was in there before and he said that we would be further from — or that we would be better off if we tear up the cards and forget about the union.”
On April 1, several of respondent’s employees and ex-employees held a party at the V.F.W. clubhouse in Rockford as an expression of regard for a fellow employee who had retired after about twenty-five years of service. Among those present were Alvin Leroy Loring, an invited guest, one of respondent’s foremen, and Ronald LeBaron, who had not been an employee of respondent for more than two years. LeBaron testified that sometime during the social affair, far removed from respondent’s premises, hé had a conversation with Loring in which the latter asked “if I was getting anything out of this organizing. I said no, just helping them and my local is all.” He testified that Loring stated, “I don’t know how the fellows can do any better or how the union can do these fellows any good. They are making as much money as anybody in town does right now with all of this overtime; if they get the union in they will probably only get a ten cent raise and- that will go for union dues anyhow,” and “He mentioned that if the union got in that all of the overtime would be closed off because they would employ a third shift.” On cross-examination, LeBaron testified:
“Q. Was there any statement made in that conversation, so far as you know, with respect to a rate of wages which would be in effect if the union got in?
“A. No, there was a discussion, but it was over the wages in Milwaukee. There was no discussion of wages here.”
In our judgment, the statements by Stearns and Loring, considered in connection with the surrounding circumstances, were no more than an expression of their views' or opinions-, permissible under Sec. 8(c) of the Act.
The Board’s petition for enforcement of its order is denied.
SWYGERT, Circuit Judge (dissenting).
I reluctantly dissent.
The trial examiner’s decision reads in part:
Based upon the testimony of Frank Thruman, Charles Nicklaus and Richard Servatius, and upon their demeanor while testifying, I find that the exchange occurred as the employees testified and that Servatius offered' to con-, sider granting a wage increase if the men would cease their Union activities.
Since we are ordinarily bound by the credibility resolutions of the examiner, I am of the view that there is substantial evidence in the record as a whole to support the Board’s finding that the respondent violated section 8(a) (1) of the National Labor Relations Act. In my opinion, this case falls squarely within the purview of N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), and Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007 (1944).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Nickolas GUERRA, Sr., Appellant, v. UNITED STATES of America, Mary Guerra, Columbia Savings and Loan Association, United Bonding Insurance Company, Appellees.
No. 8697.
United States Court of Appeals Tenth Circuit.
Dec. 30, 1966.
Charles S. Vigil, Denver, Colo., for appellant.
John Burke, Denver, Colo., for appel-lees.
Before LEWIS, ALDRICH, and HICKEY, Circuit Judges.
By designation.
ALDRICH, Circuit Judge.
This is a civil suit by the United States to foreclose a substantial tax lien. The tax was assessed pursuant to I.R.C. § 4741 (1954), which imposes an excise tax of $100 per ounce, payable by the transferee, upon all transfers of marihuana to persons not registered under sections 4751 to 4753 of the Code. The defendant was admittedly not so registered, and the question before the court was whether he was, as alleged, a transferee of 74 pounds of marihuana. The district court ordered judgment for the government, and the defendant appeals.
The pertinent facts, as found by the court sitting without jury, United States v. Guerra, D.Colo., 1965, 237 E.Supp. 1, are as follows. On January 24, 1962, one Jesus Hernandez was promised $200 to drive a 1951 Oldsmobile, which he was told contained marihuana, from Juarez, Mexico, to Pueblo, Colorado. Hernandez was informed that he was to deliver the automobile to a man named Guerra, in Pueblo, and was given a telephone number which proved to be that of the defendant Guerra’s farm near Pueblo. Customs officials of the United States, having been told that the 1951 Oldsmobile would be carrying marihuana, picked up Hernandez’s trail in Juarez and followed him to his home in El Paso, Texas, where they observed him put Colorado license plates on the car. They then followed him into New Mexico, where he was arrested by state police near Alamogordo and was searched and charged with illegal possession of marihuana.
While Hernandez was in the custody of the state police the customs officers persuaded him to assist them by making the delivery as planned. Hernandez then set out from Alamogordo with customs officials riding with him in the car, and at times driving it, and with two government ears following. At one point on the journey Hernandez made a collect call to Guerra, which the latter accepted after Hernandez said that he had a “message from Mexico.” Hernandez told Guerra that he was “broke,” and Guerra wired $15 to enable him to pay traveling expenses.
When the caravan reached Walsen-burg, Colorado, two of the customs officials concealed themselves in the trunk of the Oldsmobile, maintaining radio contact with the two official cars that were following. Upon reaching Pueblo, Hernandez stopped at a gasoline station and' again called Guerra. Guerra came to the station and instructed Hernandez to follow him. He led Hernandez to his farm and told him to drive the car into the garage. Guerra then came into the garage, asked where the “load” was, and was told that it was inside the door panels and under the hood. Hernandez and Guerra together removed two or three paper bags, which were later shown to contain about one pound of marihuana each. Guerra said that the marihuana looked “O.K.” and went into his house. At this point the customs officers emerged from the trunk of the Oldsmobile and hid behind the car. Guerra reappeared with a jar, later shown to have contained marihuana, and said, “This is the type of stuff I have.” At this point the officers arrested him and finished emptying the Oldsmobile. There were, in all, seventy-five bags which the court found contained seventy-four pounds of marihuana.
Appellant’s first contention is that he never became a transferee of the marihuana and consequently never became liable for the tax. He claims that he “had no power to direct the disposition of or to exercise actual dominion over the marihuana simply because the alleged transfer had not yet progressed to that point when he was arrested.” We cannot agree. Appellant had knowingly guided the marihuana into his own garage: the transfer had been completed. It is true that he was prevented from putting the marihuana to the purpose for which he had ordered it, but the tax is imposed on the receipt of marihuana, not on the use to which it is subsequently put. The fact that possession following receipt was short-lived, and that the officers were prepared to seize the goods does not mean that the defendant did not receive them.
Nor can we accept appellant’s claim that the role played by government officials makes this transaction something other than a transfer. The officers neither devised nor directed the transportation scheme. In substance, what they did was not to interrupt it. They did no more than assist the carrying out of a mission that had been planned before they became aware of it. Defendant, meanwhile, performed every act necessary to bring the marihuana into his possession. On the court’s findings, he had known it was coming, had wired $15 to facilitate its transportation, had led the automobile that he knew contained it onto his own property with the intention of keeping it, and had taken some into his hands, and given instructions as to the rest. There is no basis for a claim that defendant was not a willing transferee. See United States v. Oropeza, 7 Cir., 1960, 275 F.2d 558. Equally, he was not entrapped, where there is no showing that, absent government participation, the events would not have occurred. The government agent did not even initiate the transaction by offering the opportunity. Cf. Osborn v. United States, 385 U.S. -, 87 S.Ct. 429, 17 L.Ed.2d - (Dec. 12, 1966); Sandoval v. United States, 10 Cir., 1960, 285 F.2d 605; Haynes v. United States, 5 Cir., 1963, 319 F.2d 620, cert. den. 375 U.S. 885, 84 S.Ct. 161, 11 L.Ed.2d 115.
Finally, defendant raises a series of contentions centering upon the claim that the tax imposed by section 4741 is penal, rather than civil, and consequently that he was entitled to the presumptions and defenses accorded a criminal defendant. The exact thrust of this contention is difficult to determine, since defendant has not favored us with any explicit statement of how he was prejudiced by the court’s treatment of this as a civil matter. The contention is erroneous at its core, however, since the Supreme Court has explicitly held that the statute may be treated as civil even though its primary purpose is not to provide governmental revenues, but to regulate traffic in marihuana. United States v. Sanchez, 1950, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47. Consequently, the government was not required to prove every • element of its case beyond a reasonable doubt.
Specifically, we find the court well warranted in concluding that there was a prearranged plan to have Hernandez deliver marihuana to Guerra and that Guerra knowingly accepted delivery of 74 pounds of it. No more was required.
Affirmed.
We might add that the defendant did not request the court to rule that the government had such a burden. For all we know, the court may, in fact, have felt that firmly convinced.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_1_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
STURM v. CHICAGO & N. W. RY. CO.
No. 13337.
Circuit Court of Appeals, Eighth Circuit.
Sept. 30, 1946.
Ernest A. Michel, of Minneapolis, Minn. {Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellant.
Warren Newcome, of St. Paul, Minn. (Alfred E. Rietz, of St. Paul, Minn., and Nye F. Morehouse, of Chicago, 111., on the brief), for appellee.
Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.
PER CURIAM.
Gustav C. Sturm (who will be referred to as plaintiff), while employed by the defendant Railway Company (appellee) as a brakeman in Chicago, Illinois, fell from the top of a box car and was injured.. He brought this action under the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-■60, to recover damages for his injuries. In his complaint the plaintiff charged that the Railway Company was negligent in failing to equip the car from which he fell with an efficient hand brake as required by the Federal Safety Appliance Act of 1910, § 2, 45 U.S.C.A. § 11, and that his injuries were the proximate result of such negligence. The Railway Company denied that the brake was inefficient and that its alleged failure to operate properly caused the plaintiff’s injuries. The issues were tried to a jury. The evidence of the plaintiff tended to prove that the brake was inefficient and inoperative and that his injuries were due to its failure to operate. The evidence of the defendant tended to show that the brake was efficient and that the plaintiff’s injuries could not have resulted from a defect in the brake. Neither party moved for a directed verdict at the close of the evidence. The issues were submitted to the jury. There were no requests for instructions. No exceptions were taken to the trial court’s charge. The jury returned a verdict for the defendant, upon which a judgment was entered. The plaintiff has appealed from the judgment.
It is obvious that this appeal presents no question which is reviewable by this court. No ruling of the trial court is challenged. The question of the sufficiency of the evidence to support the verdict is not subject to review, since that question was not presented to the trial court by a motion for a directed verdict or any other equivalent action. Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175, 176, and cases cited. This court is without power to retry this case. It cannot concern itself with the credibility of witnesses or the weight of evidence; Booth v. Gilbert, 8 Cir., 79 F.2d 790, 792, 793; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 444; Dierks Lumber & Coal Co. v. Mabry, 8 Cir., 128 F.2d 1005, 1007; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520. The verdict of the jury, whether right or wrong, was completely determinative of the issues of fact tried and submitted.
The judgment is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Sol DIAMOND, Appellant, v. The CENTRAL RAILROAD COMPANY OF NEW JERSEY.
No. 11409.
United States Court of Appeals, Third Circuit.
Argued Jan. 4, 1955.
Decided Jan. 12, 1955.
Milford J. Meyer, Philadelphia, Pa. (Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., on the brief), for appellant.
John R. McConnell, Philadelphia, Pa. (Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief), for appellee.
Before MARIS, GOODRICH and STA-LEY, Circuit Judges.
PER CURIAM.
The sole question raised on this appeal by the plaintiff from what he regards as an inadequate judgment in a suit for personal injuries under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., is whether the trial judge erred in submitting the question of contributory negligence to the jury. The plaintiff concedes that the trial judge’s instructions on this question were proper if there was evidence from which the jury might find the plaintiff guilty of contributory negligence over and above his assumption of the risk of his employment. Our examination of the record satisfies us that there was such evidence. We accordingly find no error.
The judgment of the district court will be affirmed, each party to bear its own costs in this court.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genapel1
|
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.
GENERAL ADJUSTMENT BUREAU, INC., a New York corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 14189.
United States Court of Appeals Seventh Circuit.
Dec. 31, 1963.
Harold Stickler, Chicago, Ill., Philip C. Lederer, Chicago, Ill., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Harold B. Shore, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Melvin Pollack, Atty., N. L. R. B., Washington, D. C., for respondent.
Isaac N. Groner, Washington, D. C., for Insurance Workers International Union, AFL-CIO, amicus curiae.
Before SCHNACKENBERG, KILEY and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
General Adjustment Bureau, Inc., a New York corporation, sometimes referred to herein as “the company”, petitioner, asks us to review and set aside an order of the National Labor Relations Board that the company was guilty of unfair labor practices, under §§ 8(a) (1), 8(a) (3) and 8(a) (4) of the National Labor Relations Act as amended (U. S.C. Title 29, Section 158(a) (1), (3) and (4)). By its order, the Board required the company to reinstate Larry Lefkowitz with full back pay from the date of termination of his employment, to cease and desist from conduct violating the statute and to post a notice that it intends to comply with said order.
In its answer to the petition, the Board has asked for enforcement of its order, which is reported at 142 NLRB No. 85. By leave of court, Insurance Workers International Union, AFL-CIO, has filed a brief as amicus curiae, in which it informs us that it was the charging party before the Board and participated in the proceedings there. The union asserts that we should compel enforcement of the Board’s order.
Lefkowitz entered the employ of the company in April 1958. He was assigned to casualty claim adjustments in the 12th region, which was the metropolitan area of Pittsburgh, Pennsylvania. His superior was Walter H. Mason, a regional casualty supervisor, who was called as a witness for the Board. Lefkowitz had above average ability as an adjuster. Regional manager C. A. Eblin, also a Board witness, on one occasion recommended Lefkowitz for a special assignment in the New York office which involved about 1000 claimants,
However, there was evidence that Mason, as Lefkowitz’ superior, instructor and work leader, was constantly critical of Lefkowitz for failing to keep in touch with his office on a daily basis and especially for failing to make prompt initial contact with the claimants, insureds and insurance companies, or agents on new files assigned to him. These delays engendered numerous complaints from claimants, policyholders and company loss representatives and agents. When complaints were made to Lefkowitz, he refused to concede that criticism was at any time warranted. This attitude on his part produced further and more serious complaints, to a point where two major insurance companies refused to permit their cases to be handled by Lefko-witz. As a result, a substantial part of the work which normally would be assigned to him had to be parceled out among other adjusters.
In February 1961, Lefkowitz and another adjuster, Earl Bradley, began an organizing drive in behalf of the Insurance Workers of America, AFL-CIO. The union filed a representation petition with the Board in March and both Lef-kowitz and Bradley testified in its behalf at a Board hearing on April 25.
On May 19, 1961, Mason, in a report prepared at Eblin’s request, recommended Lefkowitz’ transfer to a 1-man office or to an office in metropolitan New York.
On September 22, Mason, in a second report prepared at Eblin’s request, again recommended Lefkowitz’ transfer to a 1-man office. In this report, Mason said Lefkowitz had “demonstrated exceptional ability in the investigation and settlement of difficult claims”; that there had been no major complaints in the last few months about his work; and that his production record was “in keeping with the number of assignments received and the production record of the other men”.
The union lost a representation election covering the adjusters, in October, 1961.
Lefkowitz became interested in running as a candidate for the legislature of Pennsylvania. In the summer of 1961, he mentioned this to branch manager John L. McCoy. According to Lefkowitz, letters were circulated by the “Lefkowitz for Legislature Committeee” on behalf of his candidacy, soliciting funds and working support as early as October and November 1961, and Eblin tacked one of the solicitation letters on the company bulletin board. Lefkowitz told no one except possibly his wife of any reservation in his mind against running. He was required to file his primary petition on or about March 12, 1962.
On November 17, 1961, Lefkowitz telephoned Mr. Whitelaw in the New York office, whom he considered in charge of his situation, and, according to Lefko-witz, he told Whitelaw that he had no alternative but to resign and protect his employment record. Whitelaw asked if Lefkowitz’ files were in bad condition and Lefkowitz replied that he supposed they were by “ordinary” standards but not if the conditions under which he had been working were taken into consideration. Whitelaw asked Lefkowitz if he thought that he could do better work some place other than Pittsburgh but Lefkowitz preferred to remain in the area. Lefkowitz insisted that he told Whitelaw three times that his resignation was to take effect on March 1, 1962 and that, although Whitelaw tried to get him to move up the resignation date, he refused and Whitelaw thereupon accepted his resignation, but perhaps suggested that he put it in writing.
Asked whether Whitelaw then said anything to him to encourage him to resign, Lefkowitz testified:
“The only thing close he could have said would be to the effect that, ‘Well, possibly it is best,’ or some such language, but nothing, I don’t think, any further than that.”
On November 20, 1961, Lefkowitz appeared at the office of Eblin, with a draft of resignation addressed to Whitelaw. At his request Eblin caused his secretary to type the resignation letter. The letter was then mailed to Whitelaw in New York. It was addressed to White-law, dated November 20,1961, and reads:
“Dear Mr. Whitelaw:
“In keeping with our telephone conversation of November 17, 1961, I hereby tender by resignation, to be effective March 1, 1962.
“In the event of any Bureau exigency, I would willingly extend this for a period not to exceed thirty days (March 31, 1962).
“Most respectfully,
“Larry M. Lefkowitz”
According to Eblin, a Board witness, Lefkowitz, when he brought the draft of this letter in'for typing, stated he could not accept any new assignments but would be willing to spend the time until March 1, 1962, or, if they wanted him until the end of March, bringing his files up-to-date or closing them if possible.
Upon reading the letter on November 22, 1961, Whitelaw noticed that it purported to be a resignation to take effect on March 1, 1962, which was 3 months and 10 days in the future. This came as a surprise to him. Thereupon Whitelaw telephoned to Lefkowitz in Pittsburgh and had his secretary make shorthand notes of “his end of the conversation”, which were introduced in evidence and which the examiner found basically accurate. Whitelaw’s remarks related to whether this resignation date had been mentioned in the previous telephone conversation of November 17, 1961; the reason for a resignation date over 3 months in the future and Lefkowitz’ political plans; and the question as to whether a resignation taking effect so far in the future would be acceptable to the company. Lefkowitz stated that Whitelaw opened the conversation by asking whether a March 1st resignation date had been discussed in the previous conversation, and that he, Lefkowitz, replied that he had mentioned it three times. This was denied by Whitelaw.
In his direct testimony, Lefkowitz said he arrived at the March 1st date because it provided a three-month period, in which he thought that he could find suitable employment. However, on cross-examination he admitted that March 1st had been mentioned and that there was some conversation about formal procedure that he had to go through in running for the legislature, but not until March. In the phone call of November 22, 1961, Whitelaw asked Lefkowitz if in Pennsylvania he had “to get a petition”.
On November 24th Whitelaw called Lefkowitz and they discussed what he had to do about the formal procedure for ' entering the primary, required in the State of Pennsylvania. In this conversation Lefkowitz said that he could not -become-a'candidate before around March 12th and he would work off all of the files to the best of his ability by March 1st. He added:
“ * * * I am not the type of man that merely because I am leaving March 1, that I would leave these files go in any manner, shape or form. I told him that I would work on the files and close as many as possible so that I wouldn’t hand them over to another adjuster and another adjuster wouldn’t have to inherit them.”
To Whitelaw, Lefkowitz denied that he picked March 1 as the date for his resignation, so he could campaign for the legislature.
On November 27, 1961, Earl F. Leach, general manager, endorsed on the bottom of the Lefkowitz letter the words “Resignation Accepted” followed by his name and title. Thereupon, pursuant to his instructions, Leach’s assistant, Kenneth G. Critton, met Lefkowitz on November 28, gave him a copy of the signed acceptance of Leach and relieved him of further duties. The examiner found that Critton agreed that Lefkowitz’ pay would continue to March 1, 1962 but that he was to do no more work. He did no work for the company after November 28.
The record shows that approximately eleven days after the date he specified in his written resignation from the company, he actually did enter the Democratic primary for the legislature of Pennsylvania and waged a campaign. The primary election date was May 15, 1962. The charge made by the union to the Board on Lefkowitz’ behalf, to the effect that his resignation in November, 1961, was not a voluntary resignation, was not filed until May 14, 1962, the day before the primary vote.
On cross-examination, Lefkowitz admitted that since November 1961 on many occasions he told persons that he had resigned voluntarily to enter politics. On redirect examination by Board counsel, he sought to justify the statements to prospective employers by stating, “I was job hunting at the time and you don’t tell a prospective employer, I am afraid, that you are involved in union difficulty.”
1. There is no difficulty in determining that Lefkowitz did resign. The decisive question before us is whether the resignation of Lefkowitz was voluntary or coerced. The burden of pointing to proof that the resignation was in effect a “constructive discharge” rests upon the Board, which has raised that issue. We are not barred from setting aside the Board’s decision, if we cannot conscientiously find that evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view. Universal Camera v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456.
2. In our necessarily curtailed recital of the facts leading up to the resignation, the essential elements thereof appear. For some period Lefkowitz’ services were unsatisfactory, a fact which both he and his employer repeatedly recognized. The record is devoid of any suggestion by the company that he would be discharged or that he should resign, although some of the staff questioned his value to the company. Instead efforts were made to assist him, even to the extent of offering to transfer him to another district, which he rejected. While in some manner he had been engaged in an activity directed toward unionization of the company’s employees, there is no evidence that he had ever been criticized or disciplined by the company in regard thereto or that this fact was even mentioned or considered. Our condensation of the evidence includes a reference to the company’s recognition of his above average capabilities as an adjuster and its recommendation of him for a special assignment in the New York office. However, his shortcomings in the matters which we have related engendered complaints from insurance claimants, policy holders, and others with whom he came in contact in his work. Lefkowitz refused to admit the justice of any of these criticisms, resulting, among other things, in the refusal of two insurance companies to permit their cases to be handled by Lefkowitz as an adjuster. The reassignment of this work to other adjusters necessarily disrupted the company’s normal operations.
In the summer of 1981, the company attempted to remedy the situation when regional casualty manager Mason recommended that Lefkowitz transfer to a 1-man office or to an office in metropolitan New York. This recommendation was repeated in September when Mason said in substance that Lefkowitz’ work had improved, and suggested that he be considered for transfer to an office in need of a single, experienced casualty adjuster where he would have the challenge of developing casualty business. However, at this time Lefkowitz considered becoming a candidate for election to membership in the Pennsylvania legislature and a committee in his behalf was soliciting funds for that purpose. The target date for filing his primary petition would be about March 12,1962. Against this background he called Whitelaw in the New York office on November 17, 1961 and told him he had no alternative but to resign and “protect my employment record”. He testified that he told Whitelaw three times that his resignation would take effect on March 1, 1962. On cross-examination, he was asked whether Whitelaw said anything to encourage him to resign and he answered that “the only thing close he could have said would be to the effect that, ‘Well, possibly it is best’, or some such language, but nothing, I don’t think, further than that.” The resignation followed on November 20, 1961. When Whitelaw called on November 24, Lefkowitz discussed with him the procedure required for entering the primary.
Was he forced to resign? If so, was it a forced resignation in which the man resigning was nevertheless able to specify the number of months before his resignation was to take effect ? This hardly seems plausible. Or was it a voluntary resignation, which not only would protect his employment record but also provide him with a convenient transfer from his adjusting work to an entry into the field of polities? He admitted that on several occasions he stated to various persons that he had resigned voluntarily to enter politics. We think that on those occasions he told the truth. Strangely, the Board was willing to accept as true his assertion that he lied on all of those occasions. The Board gave its approval to the examiner’s position, which she stated thus:
“I attach no significance to the fact that Lefkowitz told various people that he resigned to run for office. * * *»
We prefer not to adopt the illogical position taken by the Board, who would accept Lefkowitz as a martyr willing to confess deception of others to win the Board’s decision. As to all of his testimony up to and including the acceptance of his resignation, the examiner, the trier of facts, was the judge of the veracity of Lefkowitz as a witness and we make no attack upon his veracity on that subject. However, since he was granted the privilege of characterizing as true or false his repeated assertions of his purpose in voluntarily resigning, we hold that we are not barred by the veracity rule from granting relief to prevent a miscarriage of justice.
On the record as a whole, we find there is not substantial evidence to support the Board’s findings, upon which its order is based, because the record clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses. Universal Camera Corp. v. National Labor Relations Board, supra, 340 U.S. 490, 491, 71 S.Ct. 465, 466.
For these reasons, the Board’s order is set aside and its enforcement is denied.
Order set aside and enforcement denied.
. Mason and Eblin were not in the employ of the company when they testified.
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_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16175.
United States Court of Appeals Seventh Circuit.
March 26, 1969.
Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent.
Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges,
KILEY, Circuit Judge.
The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order.
Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries.
The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president.
The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices.
The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit.
Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative.
The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court.
The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act.
The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968).
The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear.
The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because
As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961).
Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State.
Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows:
The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.
That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved.
The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit.
In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here.
The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit.
The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate.
In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated.
The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings.
The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968).
A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965).
The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964).
The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940).
Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced.
MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs.
I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court.
This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious.
Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate.
In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows:
“National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.)
It states:
“Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.)
Then follows the heart of the decision:
“The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.)
Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases.
Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision:
“The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.”
In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous.
The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.”
Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief:
“Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.)
In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity.
There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected.
In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896):
“The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.)
In deciding this issue we stated (page 897):
“It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * *
“It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.)
The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case.
In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500):
“The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.)
The Board in its brief, in support of the instant petition, states:
“ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.”
In a footnote the Board states:
“For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.”
While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20):
“In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.)
Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383):
“It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office.
“The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.”
Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams.
I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision.
. 29 U.S.C. §160
sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * *
. In Singer the Board’s order was denied enforcement on other grounds.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_genapel2
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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 is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
UNITED STATES v. KING COAL CO.
(Circuit Court of Appeals, Ninth Circuit.
May 11, 1925.)
No. 4401.
1. Collision <§=>73 — Moving vessel presumed in fault for collision with anchored vessel.
A collision between a moving vessel and one anchored in a proper place and carrying proper anchor lights is presumptively due to the fault of the moving vessel, which has the burden of proof to show absence of negligence.
2. Collision'<§=>71 (2) — Collision between moving and anchored vessel held not shown to be due to inevitable accident.
The blowing out of a fuse, causing the electrical steering gear of a submarine to become inoperative and the vessel to swing with the tide and come into collision with an anchored barge, held not to establish the defense of inevitable accident, where the vessel was suddenly put up against a strong running flood tide, throwing on the steering apparatus a load too great for the fuse to carry.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Rudkin, Judge.
Suit in admiralty for collision by the King Coal Company, owner of the barge Ruth, against the United States, owner of the submarine R-19. Decree for libelant, and the United ; States appeals.
Affirmed.
Suit brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats, of U. S. pt. 2, p. 1467).
Sterling Carr, U. S. Atty., of San Francisco, Cal., and Frank Maytham, Sp. Asst. Atty. Gen., for the United States.
Ira S. Lillick, of San Francisco, Cal., for appellee.
Before GILBERT, HUNT, and MORROW, Circuit Judges.
MORROW, Circuit Judge.
On October 11, 1918, the barge Ruth, owned by libelant, was anchored in San Francisco Bay, off the docks of-the Union Iron Works. The barge remained at this anchorage until October 18, 1918, when the submarine R-19, owned by the United States, coming down from Mare Island at about 8:45 p. m., turned into the Union Iron Works to take on supplies for San Pedro. The Ruth had the proper anchorage lights burning and the night; was clear. Objects on -the bay were normally visible. When the R-19 came within about 800 feet of the barge, at a speed of from 9 to 10 knots an hour, different commands were given by the commanding officer to reach the dock of the Union Iron Works. The navigation of the submarine resulted, in. its crashing into the barge, causing the damage for which this suit was brought. Libelant was awarded the sum of $19,179.26 for damages, together with costs. An order was entered dismissing the cross-libel, and the United States appeals.
There are two defenses:
First, that the barge was anchored in a forbidden area.
Second, that the aeeident was unavoidable.
Because of the alleged improper anchorage, a cross-libel was filed by the United States, claiming damages for injury to the submarine.
This suit was brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats. U. S. pt. 2, ,p. 1467).
The lower court held that the testimony was not definite and not easy of comprehension as to whether the barge was anchored in the forbidden area; but the testimony did show that the barge had been anchored there for about eight days previous to the aeei-dent, and no complaint had been made by the harbor authorities.
As to the second defense, the lower court held that the United States did not establish clearly that the accident was unavoidable.
It is alleged in the libel that at the time of the collision between the submarine R-19 'and the barge Ruth, the latter was at anchor in San Francisco Bay off the docks of the Union Iron Works, northeast by north about 1.800 feet.
In the cross-libel of the United States it is alleged that at a point about 1,200 feet off the shore from the wharves of the Union Iron Works, the submarine R-19 came upon and collided with the barge Ruth; that the latter was anchored at a point which obstructed the course of vessels landing or attempting to land at said wharves and at a point where anchorage was forbidden by the state harbor commissioners.
In the answer of the United States to the libel, it is alleged that the collision of the submarine R-19 with the barge Ruth occurred at a point approximately 1,500 feet off the docks of the Union Iron Works. It is denied that the barge was at said time about 1.800 feet off of.said docks, or any greater distance off said docks than, approximately 1;500 feet. It is-alleged that when the accident occurred, the submarine R-19 was attempting to make a landing at the Union Iron Works, and in doing so, proceeded to pass above the barge Ruth, and the current helped to sweep the submarine down against said barge.
The docks of the Union Iron Works are located at the southern extremity of the San Francisco water front. Between the docks of the Union Iron Works and the free and open space of waters of the bay is a strip of water, 1,500 feet wide, designated by the board of state harbor commissioners as forbidden anchorage. This strip of water extends along the water front of the harbor from Point Avisadero in a northwesterly direction to Pier No. 46. There is another strip of water 1,500 feet wide extending from the Western Pacific ferry slip, south of the Union Iron Works docks, across the Bay of San Francisco, in a northeasterly direction, to the Southern Pacific Railroad Company and the Western Pacific Railway Company training walls on the Oakland water front. This strip is also designated as forbidden anchorage.
These designations by the harbor commissioners of forbidden anchorages in the harbor were authorized by section 2524 of the Political Code of the State, since superseded and jurisdiction assumed by the United States by the Act of Congress of January 28,1915, creating the Coast Guard, etc. (38 Stat. pt. 1, p. 800; Comp. St. §§ 8459%a[l]-8459%a[6]), and section 7 of the River and Harbor Act of March 4, 1915 (38 Stat. pt. 1, p. 1053 [Comp. St. § 9959a]); but the strips of such forbidden anchorages do not appear to be buoyed or otherwise marked or designated, so that their boundaries on the water are not made visible to the ordinary observer. They appear to be ascertainable mainly by directions from maps and charts with reference to objects on shore, and by the experience of pilots.
The two strips^ of water designated by the harbor commissioners as forbidden anchorage passing in front of the docks of the Union Iron Works cross each other south of the Union Iron Works, leaving a triangular space of free and open water outside and between the strips of forbidden anchorage waters in front of the docks of the Union Iron Works.
These free and open water spaces in the harbor of San Francisco are .now designated as anchorage areas by the Secretary of War, exercising the jurisdiction of the United States in accordance with the rules and regulations issued February 9, 1921. But as the collision here in controversy occurred -October 18, 1918, we will refer to the areas as they were then designated.
Whether the barge Ruth was anchored within the free and open water of the harbor, or within the forbidden anchorage, passing immediately in front of the docks of the Union Iron Works, is exceedingly difficult to determine from the testimony; and the maps and charts are of but little assistance in fixing a definite location for the barge.
When the collision occurred, the side of the submarine scraped along the anchor chain of the Ruth and ran out several fathoms. 'Subsequently, the Ruth was beached, when the anchor chain was slipped and the anchor buoyed, and evidence was introduced tending to show where the anchor was found, but the directions and distances given are not clear. There is, however, testimony tending to show that the Ruth was anchored in the free and open water of the harbor, or, as we would say now, she was anchored within an authorized anchorage area.
The court below was unable to determine from the evidence and the maps and charts the location of the barge Ruth at the time of the collision. We, finding the same difficulty, resort to the more satisfactory testimony of Capt. Meyns, in command of the Merchant Towboat Company, who anchored the barge. This he did on October 11, 1918, and testified that he anchored her off the docks about 1,800 feet in open water. This would be in the open water or anchorage area, and beyond the forbidden anchorage in front of the docks of the Union Iron Works. This witness had been a captain of a tugboat in San Francisco Bay for 31 years, and had anchored more than a thousand vessels. He testified that it was a custom in the harbor of San Francisco for the harbor commissioners to notify any one when a vessel was anchored in forbidden anchorage, and compel them either to remove the vessel, or the vessel was removed by the harbor commissioners at the expense of the owner. The evidence shows that the barge remained where Capt. Meyns anchored her, without objection from the harbor commissioners, for a period of 8 days prior to the collision. There is a presumption in favor of the testimony of this witness by reason of his experience and reliability and the failure of the harbor commissioners to object to the anchorage of the Ruth.
We think, in view of all the facts, the court below was right in holding that the anchorage of the barge in a forbidden area was not established by the evidence, and that no negligence can be attributed to her on ¿that account.
As to the second defense, that the collision was unavoidable, Lieut. William F. Call-away, who was in command of the submarine at the time of the collision, testified:
“When I arrived at a point which I considered the proper one to make the turn into the Union Iron Works, considering the entrance of the harbor and anchored craft around there, I put the rudder right and brought the vessel around 90 degrees, or possibly a little more, and our course at that time was pointing — we had the tide slightly forward of the beam, that is, we were pointing slightly up against the tide — not perpendicular to it; slightly up against the tide, just up a little.”
He was asked, after having put the rudder right, what, if anything, was done with regard to switching from the engines to the motors :
“A. I don’t recall just the instant of shifting from the .engines to the motors. It-was about the time of the turn. We stopped .the engines and went to the electrical motors, to better be able to maneuver the ship, as the engines will not back.
“Q. Having put your rudder to the right, what, if anything, thereafter did you do with reference to the rudder? A. After we had made our right'turn and were headed on the course which I judged would best clear the traffic and carry us into the Union Iron Works, the left rudder was given in order to steady the ship on her course, and then order was given to ‘rudder amidships,’ which involved, of course, the right rudder.
“Q.- What, if anything, happened after the order was given for ‘rudder amidships’ ? A. After the rudder was given amidships, I noticed that the ship was not steady, was easing off to the left; so I gave ‘right rudder.’
“Q. What, if anything, happened then? A. The ship then kept easing off to the left. Before this we had seen the barge, which-afterwards turned out to be the Ruth, and noticed that we. were easing over toward her, was the reason we had given ‘right rudder.’
“Q. ‘Right rudder’ the second time? A. Yes; that is, from amidships. After you give the ‘amidships’ you ease off to the right; in fact, she was easing toward the left, down towards the Ruth. By that time I saw that we were going to pass her closely, and I increased the speed in order to get across, and then, after I saw that the bow would clear the Ruth, I gave -the orders for ‘hard left’ in order to throw the stern away from her, but just the time we were crossing her, or right at the time, it was reported that the electric cal steering gear was inoperative, and then I gave the orders to shift to hand steering. By that time we had crossed the bow'of the Ruth and struck her anchor chain, and our stern struck her a glancing blow on ■ the bow. After passing across her, we had the hand steering put in, and we rounded the stern of the Ruth, and came- up on her starboard side, and some time during that time we shifted back to the electrical gear.”
This witness testified further:
“It was necessary to use the electrical steering device going in. We had to cross the bow of the Ruth, practically, to make a 9’0-degree turn, and after we entered into the Union Iron Works’ basin we had to make another 90-degree turn in order to get into, the'slip. * * • The chief electrician reported to me, as his duty required, of the fuse blown in the steering circuit.”
On cross-etamination this witness said:
“I can’t recall the exact speed which I gave,, but it was probably around, ór I would say,. I would judge it was around nine knots, or-ten knots, and then after I saw that the ship was easing over to the left towards the Ruth,, I increased the speed in order to pass ahead, of her more quickly.”
The witness was asked:
“Can you state how far you were away-from the barge Ruth when you first observed, it? A. I can’t give the distance that I was. from the barge Ruth when I first observed; her, but I observed her long before we ever-made the 90-degree turn, because we had seen ships anchored before the entrance to, the Union Iron Works, and I was observing-not only the shore line, but the vessels around: the place where I intended to go in.
“Q. Can you state how far you were away-from the Ruth before it gave you any con-, cern as to the manner in which you would-maneuver your own vessel? A. I was considering the Ruth at the time I made my-right turn, because I had 'seen her before that, and we saw the vessel in front of the-entranee to the harbor, and I necessarily considered her when I made my right turn.”
The witness was asked:
“How do you account for the submarine-colliding with-the Ruth, then? A. The submarine collided with the Ruth due to the-steering gear becoming inoperative with left rudder on, and allowing the R-19 to gain, ground to the ieft, instead of pursuing the-course which I had contemplated pursuing.”
Lieut. Leverett S. Lewis, who was the navigator and at the wheel of the submarine-at the time of the collision, testified:
“When we got off the Iron Works, we-turned with the right rudder to head in to., the dock; as a usual thing, in making 90-degree turn, we use about 25 degrees right rudder.
“After we had completed' the turn of approximately 90 degrees, the captain ordered left rudder, to steady her on the new course, which is customary, and I put the controller to the left, putting on the left rudder to steady, her; there was about a four-knot tide, flood tide, at this time, and after we completed the turn, a barge was noted on our port bow at anchor.
“Q. That left rudder, you say, was for the purpose of steadying the submarine? A. That left rudder was for the purpose of steadying her on the new course. After a boat starts to turn, it turns very rapidly, and it is necessary to give her the opposite rudder for just a few seconds to steady her. As that happened at this time, the captain said ‘left rudder’ to steady her on the course, and then ‘rudder amidships.’
“Q. How long a time elapsed between the time of the order of ‘left rudder’ and ‘rudder amidships,’ approximately? A. Approximately five seconds.
“Q. Now, about how far was the submarine from the barge at the time that order was given, ‘rudder amidships’? A. The barge was about broad on our port bow, and in such a position that it seemed we would clear her by 100 feet.
“Q. What was the next maneuver? A. The captain evidently noticed at this time that the boat was starting to swing to the left, because he gave the order ‘right rudder,’ and immediately after that we noticed that the tide was setting us down on the Ruth, and the bow was not swinging to the right; and the captain then saw that although the bow of the submarine would clear the Ruth, it was possible that the stern would hit, so then he gave ‘full left rudder’ to throw the stern out, and went ahead on the motors to increase the speed. Our side scraped along the anchor chain of the Ruth and ran out several fathoms of the chain, and then the port side aft of the submarine hit the bow of the Ruth a glancing blow.”
This witness was asked:
“Q. What is your explanation as to the reason why this fuse blew out ? A. The only explanation I could offer is that the strong tide running at that time, the rudder was put up against the tide, and that the load was too great for the fuse to carry. The only other explanation would be defective fuse, and that very seldom happens, I believe.”
Robert S. Pearson was chief electrician on the submarine R-19 at the time of the collision with the barge Ruth. He testified that he was on the bridge at that time, saying:
“At that time we saw that the barge Ruth was in very close proximity to us, and the commanding officer ordered ‘hard right rudder,’ in order to be sure to clear her. x * * iji^g ru¿¿er evidently did not take, and the commanding officer, seeing that a collision might be caused, ordered ‘hard left rudder’; at that time the man in the conning tower, who was watching the indicator - — there is an indicator in the conning tower that designates by five degrees how the rudder acts — noticed that the steering gear was out of commission. The order was given to rig the hand-steering gear. Before this could be done, we raked the Ruth’s anchor chain, and our stern collided with her bow.”
. This witness was asked:
“What was the cause -of the refusal of the rudder to respond to the will of the operator under the command ‘right rudder’ ? A. Both fuses were blown out.”
Witness was asked:
“Have you ever known of a steering gear fuse to have blown out before? A. Not on the R type boats.”
These three witnesses were officers of the submarine R-19, called by the United States, and the situation was clearly stated by them, aside from the discrepancy in the testimony of the commanding officer and the navigator 'as to the time when the Ruth was discovered. The barge Ruth was at anchor with her anchor lights burning. Her anchorage was not in a forbidden area. Her visibility to moving shipping was normal, and her position was discovered in time for safe navigation on the part of the submarine. The presumption is, in such a situation, that the barge at anchor, properly lighted, was not at fault, while, on the other hand, the presumption is that the moving submarine, charged with reasonable caution, was at fault, and the evidence supports this presumption.
The United States contends that the collision was unavoidable, and that the commanding officer had the right to rely upon the electric steering apparatus, and that the blowing out of the fuse was an accident that could not be anticipated.
Counsel for the United States contend that the facts in this case bring it within the interpretation based upon the facts of the ease of The Olympia, 61 F. 120, 9 C. G. A. 393. The collision in that case occurred when the tiller rope on the Olympia broke. The court held that the accident was caused by a latent defect in the rope which could not have been discovered by reasonable inspection; consequently, the collision was held to have been caused by an inevitable accident. But in the course of his opinion, Judge Lurton of the Circuit Court of Appeals for the Sixth Circuit makes a distinction applicable here. He said:
“The defendants say, 'Our tiller rope broke, and the vessel became unmanageable, and the collision unavoidable.’ That only shows that the breaking- of the tiller rope was the cause of the collision. They must go further, and show that the cause which operated to break the tiller rope was unavoidable. The collision was but the result of the cause which produced a broken tiller rope. If that cause is not shown to be unavoidable, how can it be said that the collision was an inevitable accident? Unless the defendants can get rid of the negligence proved against them by showing the cause which broke this wheel rope, and that the result of that cause was inevitable, or by showing all the possible causes which might have produced such an effect, and then showing that the result of each one of these possible causes could not have been avoided by them, they have not met the burden of proof which rests upon them. ® Was it due to mismanagement of the steering wheel? The full force of the power of the steering engines suddenly thrown upon the steering gear might produce such a sudden strain as to snap the wheel rope. This full force could only be exerted by very suddenly putting the steering wheel hard over. If there was no necessity for putting the wheel hard over suddenly instead of slowly, and a parting was the result, negligence might well be imputed. But the evidence rebuts the theory that this was the probable cause.” Here is the distinction: “The evidence of the wheelman does not show that the wheel was put hard over, or suddenly handled in any way.”
Had the commanding officer, under the circumstances disclosed in the testimony, the right to put the electric steering apparatus, controlling the rudder, up against a strong running flood tide, throwing suddenly on the apparatus a load too great for the fuse to carry?
The burden is clearly upon the officers of the submarine to justify such dangerous navigation. ' The strain on the electrical apparatus should have been anticipated when too' great, a load was placed upon it. In the situation we have here presented, the doctrine-applicable is res ipsa loquitur — the situation speaks for itself — and fixes the charge of negligence upon the submarine.
The decree of the District Court is affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_state
|
15
|
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".
CITY OF BLOOMINGTON, INDIANA, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, etc., et al., Defendants-Appellees.
No. 88-2660.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 18, 1989.
Decided Dec. 6, 1989.
Rehearing and Rehearing En Banc Denied Jan. 23, 1990.
Joseph V. Karaganis (argued), A. Bruce White, Karaganis & White, Chicago, Ill., Geoffrey M. Grodner, Mallor, Grodner & Bohrer, James R. Trulock, II, Bloomington, Ind., for plaintiffs-appellants.
Joseph B. Carney, Baker & Daniels, Indianapolis, Ind., David R. Berz, Stanley M. Spracker, Weil, Gotshal & Manges, Washington, D.C., Bryan G. Tabler, Michael R. Fruehwald (argued), Stanley C. Fickle, Michael Rosiello, Barnes & Thornburg, Indianapolis, Ind., Anna Swerdel, Deborah J. Schmall, U.S. Dept, of Justice, Washington, D.C., for defendants-appellees.
Before CUMMINGS, CUDAHY, and EASTERBROOK, Circuit Judges.
CUMMINGS, Circuit Judge.
In April 1981 the City of Bloomington, Indiana, and its Utilities Service Board (collectively “City”) sued Westinghouse Electric Corporation for $149,000,000 damages and equitable relief alleging Westinghouse discharged waste containing polychlorinat-ed biphenyls (PCBs) into Bloomington’s sewers and into its Winston-Thomas Sewage Treatment Plant. In October 1981 the City filed an amended complaint adding Monsanto Company as a defendant and also covering the presence of PCB waste at the City’s Lemon Lane Landfill. The amended complaint sought $80,000,000 in damages and equitable relief from Monsanto. Proceedings were stayed in October 1983 to permit Westinghouse and the City to negotiate a settlement. The negotiations resulted in an agreement — referred to by the parties and the lower court as a consent decree — approved by Judge Dillin in August 1985.
In March 1986 the City filed its second amended complaint solely against Monsanto, reasserting liability under theories of public and private nuisance, trespass, abnormally dangerous activity, and negligence, and adding a wilful and wanton misconduct count as well as three counts under the Racketeering Influenced Corrupt Organizations Act (RICO). The ad damnum was $387,000,000.
On June 27, 1988, the district court handed down an opinion dismissing the counts of the second amended complaint based on nuisance, trespass, abnormally dangerous activity, and RICO. Two days thereafter the district court denied leave to file a third amended complaint and a week thereafter the case went to trial on the negligence and wilful and wanton misconduct counts contained in the second amended complaint. The jury found in favor of Monsanto and on July 18, 1988, judgment was entered in its favor.
The City has appealed basically on the ground that the trial evidence presented jury issues under the theories of nuisance, abnormally dangerous activity, and trespass, and that the trial court therefore erred in granting the defendant’s Rule 12(b)(6) motion to dismiss these claims. If the City is right, it is entitled to a new trial. We conclude, however, that the City had no viable claim against Monsanto based on those theories and therefore affirm.
I. Factual Statement
PCBs are chemical mixtures manufactured by Monsanto and others and sold for various industrial purposes, including insulation of high voltage electrical equipment such as capacitors and transformers.
Industrial experience showed that excessive long-term exposure to PCBs could cause skin rashes and liver disturbances. Consequently Monsanto confined its sales of PCBs to sealed containers for electrical uses, accepted used PCB fluid for reclamation and incineration, and informed customers of the latest information on the effects of PCBs. In 1970 Monsanto commenced using a warning label advising customers not to permit PCBs to enter the environment and in 1976 Monsanto announced that it would stop selling PCBs since substitutes were available for electrical equipment manufacturers.
One of Monsanto’s customers for PCBs was Westinghouse. Westinghouse used PCBs in its Bloomington plant where it manufactured capacitors. Westinghouse waste containing PCBs was hauled to various Bloomington area landfills, and small concentrations of PCBs also got into the sewer effluent of the Westinghouse plant.
In 1970, the sales agreement between Monsanto and the Westinghouse Blooming-ton plant contained a provision requiring Westinghouse to use its best efforts to prevent PCBs from entering the environment and Monsanto instructed Westinghouse how to dispose of PCBs so that they would not enter water systems, including the City’s sewage systems. Monsanto also made recommendations to reduce PCB discharges by treating waters before their release to sewers. Westinghouse took a number of steps to reduce PCB discharges from its Bloomington plant until Monsanto stopped selling any PCB products to that plant in September 1977.
Water containing PCBs from the Westinghouse plant was found in the City’s Lemon Lane Landfill and its Winston-Thomas Sewage Treatment Plant and connected sewers. The 1985 consent decree between the City and Westinghouse provides for an environmental cleanup with an estimated cost to Westinghouse in excess of $100,000,000. City Br. at 5. The decree provides for the excavation, removal, and incineration of PCB-contaminated material from the Lemon Lane Landfill, the Winston-Thomas Sewage Treatment Plant, and various other sites. In spite of this comprehensive program, the City, in its last proposed pleading against Monsanto, seeks an additional $750,000,000.
The City is not urging us to upset the judgment against it on its negligence and wilful and wanton misconduct theories that were tried to the jury. Rather it contends that the district court erred in dismissing the claims based on nuisance, trespass, and abnormally dangerous activity and that the City is therefore entitled to a new trial. We review a Rule 12(b)(6) dismissal under a de novo standard. Corcoran v. Chicago Park District, 875 F.2d 609, 609 (7th Cir.1989).
II. Analysis
A. Nuisance
The City endeavors to recover on the basis of public or private nuisance by stating that Monsanto only opposes nuisance liability on the ground that Monsanto’s own plant was not the source of the pollution. This is a misreading of Monsanto’s position. As the district judge recognized, the essence of the tort of nuisance is one party — here Westinghouse — “using his property to the detriment of the use and enjoyment of others.” Entry of June 27, 1988, at 4, citing Friendship Farms Camps, Inc. v. Parson, 172 Ind.App. 73, 359 N.E.2d 280, 282 (1977). The City has not refuted this requirement in either of its briefs, nor has it been able to find any cases holding manufacturers liable for public or private nuisance claims arising from the use of their product subsequent to the point of sale. Since the pleadings do not set forth facts from which it could be con-eluded that Monsanto retained the right to control the PCBs beyond the point of sale to Westinghouse, we agree with the district court that Monsanto cannot be held liable on a nuisance theory.
The City relies on the Restatement of Torts (Second) § 821D, which reads as follows: “A private nuisance is a nontrespas-sory invasion of another’s interest in the private use and enjoyment of land.” Here, however, there is no basis upon which to conclude that Monsanto — as opposed to Westinghouse — has invaded the City’s interest in the enjoyment of land. Section 821B defines a public nuisance as “an unreasonable interference with a right common to the general public.” Since there is no basis upon which to conclude that Monsanto itself interfered with such a right, that definition has not been satisfied either.
The uncontested record shows that when alerted to the risks associated with PCBs, Monsanto made every effort to have Westinghouse dispose of the chemicals safely. Westinghouse was in control of the product purchased and was solely responsible for the nuisance it created by not safely disposing of the product. County of Johnson v. United States Gypsum Co., 580 F.Supp. 284, 294 (E.D.Tenn.1984), modified on other grounds, 664 F.Supp. 1127 (E.D.Tenn.1985). The allegations do not support the proposition that Monsanto participated in carrying on the nuisance. Without such participation, Monsanto cannot be liable within the definition of the Restatement of Torts (Second) § 834. The dismissal of nuisance Counts XI and XII was warranted.
B. Trespass
Count XIII alleges that Monsanto’s conduct causing the PCB contamination of the City’s property constituted “trespass under Indiana law.” The district court dismissed Count XIII because the City did not allege that “Monsanto performed any intentional act, which act could have resulted in the trespass alleged.” Entry of June 27, 1988, at 5. The City contends that the dismissal was wrongful because of Judge Dillin’s “erroneous view of the intent required for trespass liability.” City Br. at 39. However, to support his ruling, the district judge relied on Hawke v. Maus, 141 Ind.App. 126, 226 N.E.2d 713, 716 (1967), which expressly stated that “it is not necessary that the trespasser intend to commit a trespass.” Rather the Appellate Court of Indiana explained that “it is required for trespass that there be an intentional act and an intent to do the very act which results in the trespass.” Id. This seemingly accords with the Restatement of Torts, which in pertinent part only imposes liability for trespass if the actor “intentionally ... enters land in the possession of the other, or causes a thing or a third person to do so,.... ” Restatement of Torts (Second) § 158(a) (emphasis supplied). To this extent intent is required.
In its brief, the City quotes Comment i to Section 158(a). The four illustrations in this Comment all require the actor’s intent. And as explained in Comment,/, there is no liability where a defendant has caused entry of a third person (here Westinghouse) unless the actor (here Monsanto) intentionally causes the third person to enter land by command, request, or physical duress. When Monsanto sold the PCBs to Westinghouse, Monsanto did not know that Westinghouse would deposit harmful waste on City property, and Monsanto certainly did not command, request, or coerce Westinghouse into doing so. Monsanto thus lacked any kind of trespassory intent.
In accordance with the Restatement principles, courts do not impose trespass liability on sellers for injuries caused by their product after it has left the ownership and possession of the sellers. Dine v. Western Exterminating Co., No. 86-1857, 1988 WL 25511 (D.D.C. March 9, 1988) (chlordane and heptachlor); National Gypsum Co., 637 F.Supp. at 656; W.R. Grace & Co., 617 F.Supp. at 133.
Monsanto did not deposit PCB wastes in City property nor did Monsanto instruct Westinghouse to do so. Therefore, any trespass was Westinghouse’s sole responsibility.
C. Abnormally Dangerous Activity
The district court also dismissed Count XIV of the second amended complaint dealing with abnormally dangerous activity. Indiana recognizes the doctrine of strict liability stemming from carrying on an abnormally dangerous activity. Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N.E.2d 406 (1963); Erbrich Products, 509 N.E.2d at 853. As reflected in the Restatement of Torts (Second) § 519, however, a plaintiff cannot recover unless the harm is caused by the activity of the defendant. Here the harm to the City’s sewage and landfill was not caused by any abnormally dangerous activity of Monsanto but by the buyer’s failure to safeguard its waste. In denying liability for an ultra-hazardous activity here, the district court pointed out that Monsanto did not control the PCBs contained in Westinghouse’s waste. This accords with the Restatement view because the Restatement confines strict liability to “[o]ne who carries on an abnormally dangerous activity.” Restatement § 519(1). Here that definition would include Westinghouse but not Monsanto.
The City relies on Indiana Harbor Belt Railway Co. v. American Cyanamid Co., 517 F.Supp. 314 (N.D.Ill.1981), to support the proposition that the manufacture of PCBs is an abnormally dangerous activity. Indiana Harbor Belt held that shipment of acrylonitrile, a toxic substance, was an abnormally dangerous activity. In Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 (1984), this Court explicitly distinguished Indiana Harbor Belt, and held the manufacture of handguns is not an ultrahazardous activity and that there can be no liability for merely manufacturing dangerous products.
Cases requiring liability impose liability for the ultrahazardous activity as a result of the use of the product. To recognize liability of a manufacturer or distributor would virtually make them the insurer for such products as explosives, hazardous chemicals or dangerous drugs even though such products are not negligently made nor contain any defects. Although such a social policy may be adopted by the legislature, it ought not to be imposed by judicial decree.
Martin, 743 F.2d at 1204, quoting with approval Riordan v. Int’l Armament Corp., 81 L 27923 (Circuit Court Cook County, Law Division, July 21, 1983) (emphasis in original), affirmed, 132 Ill.App.3d 642, 87 Ill.Dec. 765, 477 N.E.2d 1293 (1985). While both Martin and Indiana Harbor Belt were decided under Illinois law, there is no indication that Indiana law differs. Rather, the Court of Appeals of Indiana, in holding that the manufacture of chlorine gas is not abnormally dangerous, employed reasoning similar to that in Martin, stating, “If the rule were otherwise, virtually any commercial or industrial activity involving substances which are dangerous only in the abstract automatically would be deemed as abnormally dangerous. This result would be intolerable.” Erbrich Products, 509 N.E.2d at 856. In addition, the Erbrich Products court held that an activity could not be considered abnormally dangerous if the risks therefrom could be limited by the exercise of reasonable care. Id. The risks associated with the disposal of PCBs could have been limited by Westinghouse’s exercise of reasonable care.
The Fifth Circuit has also explored the limits of liability in this field in a cogent opinion by Judge Wisdom in Perkins v. F.I.E. Corp., 762 F.2d 1250, 1265 n. 43 (5th Cir.1985):
Even if §§ 519-520 of the Restatement (Second) of Torts were applicable, it appears that the defendants could not be held liable under those sections.... The comments to § 519 demonstrate that the marketing of a consumer product is not within the purview of the kinds of activities that section was meant to encompass. In particular, comment d states that “liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity." Restatement (Second) of Torts § 519 comment d (1977) (emphasis added). Thus, § 519 encompasses activities that are dangerous in and of themselves and that can directly cause harm to those “in the vicinity,” even though conducted with “the utmost care to prevent the harm.” Id. The storage of dynamite in a city is one paradigm given in comment e. The marketing of a handgun is not dangerous in and of itself, and when injury occurs, it is not the direct result of the sale itself, but rather the result of actions taken by a third party.
As in Martin, we are unwilling to extend the doctrine of strict liability for an abnormally dangerous activity to the party whose activity did not cause the injury. And, consistent with Erbrich Products, the manufacture of PCBs cannot be considered abnormally dangerous under Indiana law since the risks therefrom could have been limited by Westinghouse’s reasonable care. Finally, as in Perkins, the marketing of the PCBs was not dangerous itself, and the injury was rather the result of actions taken by a third party. The district court was correct in dismissing Count IV of the second amended complaint.
III. Denial of Motion to File Third Amended Complaint
The City’s proposed third amended complaint was presented two days after the court had dismissed the Counts of the second amended complaint based on nuisance, trespass, and abnormally dangerous activity. The third amended complaint, however, did not materially alter the prior pleading, but merely repeated factual materials that had already been considered by the trial court, stating at the end of each Count that these facts created liability. Because the proposed pleading did not assert new contentions or depend upon new evidence, there was no need to permit its filing. Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir.1983).
IV. Response to Dissent
The dissent argues that reliance on National Gypsum and W. R. Grace, which were decided under New Hampshire law, is inconsistent with Indiana law. New Hampshire has never adopted the Restatement of Torts (Second) with respect to nuisance liability. Contrary to the assertion in the dissent, neither has Indiana, even “in large measure.” Rather, Indiana evaluates nuisance claims under the statute cited by the dissent at 13 n. 1. The language of this statute is nearly identical to the language used to define nuisance in National Gypsum: “the term includes everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.” National Gypsum, 637 F.Supp. at 656. This similarity in language, added to the fact that neither New Hampshire nor Indiana has adopted the Restatement of Torts (Second) with respect to nuisance liability, lends credence to the assertion that Judge Dillin “justifiably relied” on National Gypsum in dismissing the nuisance claim against Monsanto.
The dissent also argues that the City should have been allowed to proceed with its case, at least to the summary judgment stage. The dissent twice concedes that it is doubtful that Bloomington’s dismissed claims would have survived summary judgment. In fact Judge Dillin’s decision to dismiss the nuisance, trespass, and abnormally dangerous activity claims was based not only on the pleadings but also on more detailed allegations and evidence contained in the parties’ statements of contentions and exhibits. Entry of June 27, 1988, at 3. Thus it is apparent that regardless of the label applied, Bloomington had ample opportunity to inform the court of the evidence it proposed to adduce at trial. Finally, the dissent suggests that this opinion sets a “potentially dangerous precedent” by insulating sellers from liability regardless of their activities before or after the sale of their product. Regardless of whether the touchstone for liability is control or substantial participation, it seems incongruous to penalize a manufacturer and seller for his good faith efforts to limit the potentially hazardous effects of his product once it has left his plant. The dissent suggests that had Monsanto done less, had they merely sold their product and walked away, they would have been less blameworthy. This seems to us a far more dangerous approach than that taken by this opinion.
Judgment affirmed.
. The third amended complaint was similar to its predecessor but was fleshed out with documentary references and requested $750,000,000 in damages. Each of the complaints against Monsanto strikingly increased the amount of damages sought from that defendant.
. Judge Dillin’s description of the consent decree gives an estimated cost to Westinghouse of from $13,000,000 to $65,000,000 for the cleanup. Entry of August 22, 1985, at 14.
.More specifically, the district court’s entry approving the consent decree describes Westinghouse’s undertakings as follows:
a. To excavate and remove materials from the six sites;
b. To remove sediment from certain streams and stream banks;
c. To construct a federal, state and city approved high temperature incinerator to incinerate PCBs, associated hazardous wastes and soil solid waste in accordance with the requirements of federal, state and local law;
d. To transport to the incinerator and incinerate the materials removed from the six sites;
e. To dispose of the ash and other by-products of the incineration process, in accordance with the requirements of law;
f. To perform certain interim remedial measures at the sites, including monitoring; and
g. To properly close, maintain and monitor each site after the PCBs and other materials have been removed.
Entry of August 22, 1985, at 15.
. For cases holding manufacturers not liable for nuisance claims arising from the use of their product subsequent to sale, Judge Dillin justifiably relied on two cases applying New Hampshire law, City of Manchester v. National Gypsum Co., 637 F.Supp. 646, 656 (D.R.I.1986) (asbestos), and Town of Hooksett School District v. W.R. Grace & Co., 617 F.Supp. 126, 133 (D.N.H.1984) (asbestos).
Monsanto does not rely on the Indiana statutory "coming to the nuisance” exception to the definition of a nuisance, so that there is no need here to determine its applicability. See Erbrich Products Co., Inc. v. Wills, 509 N.E.2d 850, 857-859 (Ind.App.1987).
. That section provides:
One is subject to liability for a nuisance caused by an activity, not only when he carries on the activity but also when he participates to a substantial extent in carrying it on.
. The Court of Appeals of the District of Columbia has recently adopted this result. Delahanty v. Hinckley, 564 A.2d 758 (D.C.Ct.App., 1989),:
The marketing of a hand gun is not dangerous in and of itself, and when injury occurs, it is not the direct result of the sale, but rather the result of actions taken by a third party. Furthermore, hand gun marketing cannot be classified as abnormally dangerous by applying the factors of Section 520. For example, any high degree of risk of harm, or any likelihood that such harm will be great, would result from the use, not the marketing as such, of hand guns.
. No court has held that the manufacture of PCBs is an abnormally dangerous activity. Apparently only two courts, neither addressing allegations against a manufacturer of PCBs, have considered the application of strict liability for abnormally dangerous activities to PCBs. In the first of these cases, Amland Properties Corp. v. Aluminum Co. of America, 711 F.Supp. 784 (D.N.J.1989), the court, applying New Jersey law, held that the question of whether disposal of PCBs was an abnormally dangerous activity was one for the jury. Similarly, in the second case, Ahrens v. The Superior Court of the City and County of San Francisco, 197 Cal.App.3d 1134, 243 Cal.Rptr. 420 (1st Dist.1988), the court held that the question of whether the use of PCB-containing transformers in urban office buildings was an abnormally dangerous activity was a question for the jury.
. The court also dismissed the RICO Counts of the second amended complaint, but the City does not contend this was erroneous.
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_usc2sect
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2751
|
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 22. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellant, v. Richard J. LEARY, and F.L. Kleinberg & Co., Defendants-Appellees.
Nos. 86-2487, 86-2488.
United States Court of Appeals, Tenth Circuit.
May 2, 1988.
Bruce F. Black, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on the briefs), Denver, Colo., for plaintiff-appellant.
Michael F. DiManna, Di Manna & Jackson, Denver, Colo., for defendant-appellee, Leary.
Robert T. McAllister, Dill, Dill & McAllis-ter, Denver, Colo., for defendant-appellee, Kleinberg.
Before HOLLOWAY, Chief Judge, ANDERSON and TIMBERS, Circuit Judges.
Hon. William H. Timbers, United States Court of Appeals for the Second Circuit, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
The government appeals from the district court’s decision granting defendants’ motion to suppress evidence seized under a search warrant. We affirm the district court, holding that the defendants’ fourth amendment rights were infringed, that the search warrant was facially overbroad and invalid, and that the evidence seized should be suppressed.
I. Background
This appeal stems from the execution of a search warrant at the offices of the F.L. Kleinberg Company (“Kleinberg”) in Boulder, Colorado on August 23, 1984. Klein-berg and Richard J. Leary, a vice-president at Kleinberg, were subsequently indicted for conspiring to violate the Export Administration Act. 50 U.S.C.App. § 2410. Kleinberg and Leary, as defendants, moved to suppress the fruits of the search of the Kleinberg offices. The district court granted that motion and the government appeals pursuant to 18 U.S.C. § 3731.
The search warrant was obtained by federal customs agent John Juhasz on the basis of his affidavit alleging violations of the Arms Export Control Act, 22 U.S.C. § 2778, and the Export Administration Act. The affidavit recites in detail the purchase and attempted export of a Micro-tel Precision Attenuation Measurement Receiver by Kleinberg in 1984. In short, the affidavit alleges that Kleinberg did not have the proper license to export this particular piece of equipment and that Kleinberg was attempting to illegally export the receiver to the People’s Republic of China via a series of “front” companies in Hong Kong. The affidavit addresses only this single transaction and the companies involved in that transaction. No other companies, countries, or commodities are mentioned in the affidavit or alleged to be part of any illegal export scheme.
Based on the affidavit, a warrant was issued to search the Kleinberg offices and seize the following property:
Correspondence, Telex messages, contracts, invoices, purchase orders, shipping documents, payment records, export documents, packing slips, technical data, recorded notations, and other records and communications relating to the purchase, sale and illegal exportation of materials in violation of the Arms Export Control Act, 22 U.S.C. 2778, and the Export Administration Act of 1979, 50 U.S. C.App. 2410.
The warrant was executed on August 23, 1984 by Agent Juhasz and six other Customs officers. Twenty boxes of business records were seized including references to sales and sales contacts throughout the world, telexes to Australia and South Africa, information from applicants for employment with Kleinberg, Leary’s application with Shearson American Express for personal financial planning, Leary’s life insurance policy, and correspondence relating to other businesses for which Leary acted as sales representative.
After the indictment, Kleinberg and Leary moved to suppress all of the evidence seized in the search. The district court granted that motion, finding first that the affidavit was not supported by probable cause, and second, that the warrant did not sufficiently specify the evidence to be seized. The court also found that the “good faith” exception to the exclusionary rule adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) was inapplicable.
On appeal, the government argues (1) Leary and Kleinberg have no standing to raise a fourth amendment claim; (2) the warrant was sufficiently particular in specifying the items to be seized; (3) the warrant was supported by probable cause; and (4) even if the warrant is found upon review to be invalid, reliance on the warrant was “objectively reasonable” and the evidence should not be suppressed under the reasoning of Leon.
II. Standing
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) the Supreme Court abandoned a separate analysis of “standing” for claims of violations of the fourth amendment in favor of an analysis focusing on the “substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Id. at 133, 99 S.Ct. at 425. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Hansen, 652 F.2d 1374, 1379 n. 2 (10th Cir.1981). “Whether a person has standing to contest a search on fourth amendment grounds turns on whether the person had a legitimate expectation of privacy in the area searched, not merely in the items seized.” United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987) (citing United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980)). Determining whether a legitimate or justifiable expectation of privacy exists, in turn, involves two inquiries. First, the claimant must show a subjective expectation of privacy in the area searched, and second, that expectation must be one that “society is prepared to recognize as ‘reasonable.’ ” Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984) (quoting in part Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)); see also United States v. Owens, 782 F.2d 146, 150 (10th Cir.1986). The “ultimate question” is “whether one’s claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances.” Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Finally, standing is a legal question, and “[wjhere the facts are not in dispute, this court may review the question of standing de novo.” United States v. Kuespert, 773 F.2d 1066, 1067 (9th Cir.1985).
There is no doubt that a corporate officer or employee may assert a reasonable or legitimate expectation of privacy in his corporate office. Cf. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968) (“It has long been settled that one has standing to object to a search of his office, as well as of his home.”); United States v. Lefkowitz, 464 F.Supp. 227, 230 (C.D.Cal.1979) (corporate officers had sufficient privacy interest in corporate office suite), aff'd, 618 F.2d 1313 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); see also 4 W. LaFave, Search and Seizure § 11.3(d) (2d ed. 1987) [hereinafter LaFave]. Similarly, “it seems clear that a corporate defendant has standing with respect to searches of corporate premises and seizure of corporate records ” Id. at 316. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir.1988). In addition, except in rare circumstances, a warrant is as necessary to support a search of commercial premises as private premises. See Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1216 n. 5 (D.C.Cir.1981) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982).
Normally, our inquiry would end here. The government argues, however, that Leary and Kleinberg lack the requisite expectation of privacy in their offices and records because of the regulatory scheme imposed upon exporters by the federal government and the company’s “open door” policy toward government inspectors. For purposes of clarity, we repeat the government’s argument in some detail:
[T]he government would concede that if it were not for the regulatory scheme requiring that the defendants make, keep and produce the seized records to the government upon request, and the company’s open door policy, both defendants would be able to assert a privacy interest in the seized records under Rakas v. Illinois, 439 U.S. 128 [99 S.Ct. 421, 58 L.Ed.2d 387] (1978).
The standing argument asserted by the government is limited to the very unusual facts of this case_ [T]he defendants operated in a highly regulated industry where the law required them to make, keep and produce all documents relating in any way to an export. Furthermore, company policy was that the government could come, scheduled or unscheduled and ask for any file or information it needed. Thus, the government’s argument is that any privacy interest in the required records was waived by the company and Mr. Leary.
Mr. Leary must have known that under these circumstances any company record could be turned over to the government upon request at any time, whether he was present or not, without the government being required to resort to legal process.
The company’s position is somewhat different, because it could have revoked the policy at any time. But it did not. At the conclusion of the search the President, Frederick L. Kleinberg, invited the agents back to examine any remaining records at a later time.
Reply Brief of Appellant at 3-5 (citations omitted).
We find the government’s argument inherently misleading, as it attempts to concede an expectation of privacy with one hand and remove it with the other. Moreover, the argument confuses the law relating to searches or inspections of “regulated” industries with simple recordkeeping requirements. Nevertheless, we will analyze the government’s position in detail. The government’s standing argument consists of two related questions: First, do the regulatory requirements imposed on exporters licensed by the government and Kleinberg’s “open door” policy constitute “circumstances” that render Leary and Kleinberg’s expectation of privacy unreasonable? See Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Second, have Leary and Kleinberg “waived” their fourth amendment rights by participating in a regulated business and by adopting an “open door” policy, inviting government agents to inspect their business records? We address these questions in turn.
Federal regulations implementing the nation’s export control laws impose comprehensive recordkeeping requirements on exporters. It is clear, however, that licensed exporters retain their fourth amendment rights. The key provision is 15 C.F.R. § 387.13(f)(1) (1987):
Persons within the United States may be requested to produce records which are required to be kept by any provision of the Export Administration Regulations or by any order, and to make them available for inspection and copying by any authorized agent, official or employee of the International Trade Administration, the U.S. Customs Service, or the U.S. Government, without any charge or expense to such agent, official or employee. The [government] encourage[s] voluntary cooperation with such requests. When voluntary cooperation is not forthcoming, the Office of Export Enforcement and the Office of Antiboycott Compliance are authorized to issue subpoenas for books, records and other writings. In instances where a person does not comply with a subpoena, the Department of Commerce may petition a district court to have the subpoena enforced.
The district court properly analyzed the effect of these requirements:
The Department of Commerce could have requested inspection and copying of records relating to export at any time, and if the company refused to allow voluntary inspection, the government could have subpoenaed the records. This required procedure affords the protection of judicial review before records can be seized without permission.... The fact that a warrant is required for a full-scale criminal search and seizure of records required to be kept recognizes the fourth amendment’s protection of privacy even in these circumstances and restrictions on the government’s power to intrude on that privacy.
Mem. Opinion at 4. Cf. United States v. Molt, 444 F.Supp. 491 (E.D.Pa.), aff'd, 589 F.2d 1247 (3d Cir.1978); see also Railway Labor Executives’ Ass’n v. Burnley, 839 F.2d 575, 584 (9th Cir.1988) (“When no... plan [authorizing warrantless inspections] is built into the legislation regulating a specific industry, the [Supreme] Court has required a warrant as a condition of a reasonable search.”); Serpas v. Schmidt, 827 F.2d 23, 28 (7th Cir.1987) (“[A] history of pervasive regulation of an industry is not by itself enough to render the warrant requirement superfluous_ [T]he Supreme Court has sanctioned warrantless searches of commercial premises in certain industries subject to longstanding governmental oversight.... [however] [i]n each of these cases,... Congress expressly authorized the terms and conditions of searches on specified premises.”), cert. denied, — U.S. -, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988). Neither the export regulations nor the export statutes authorize a warrantless search and seizure of business records, see 22 U.S.C. § 2778(e); 50 U.S.C.App. § 2411; Brief of Appellant at 14, yet the government would have us hold that the regulatory scheme negates the licensed exporter’s right to challenge an invalid warrant. In other words, the government concedes that it must obtain a warrant but argues that it need not obtain a valid warrant. We refuse to adopt this reasoning.
Similarly, the company’s “open door” policy does not negate the defendants’ expectation of privacy. There is a distinction of constitutional significance between the company’s policy, which invited government agents to “visit... and ask for any file or information they want or need,” and a thorough search of the offices and seizure and removal of twenty boxes of files, including personal records and documents unrelated to the company’s regulated export activities. Leary and Kleinberg retained control over the premises and records and had the authority to restrict the government’s access by the terms of the policy. In sum, we find a reasonable expectation of privacy in these circumstances.
For substantially the same reasons, we reject the government’s argument that Leary and Kleinberg either waived their fourth amendment rights or consented to the search. When evaluating fourth amendment rights, there is no clear distinction between “consent” to a search and a “waiver” of one’s privacy interest. The government, however, attempts to draw a distinction in this case, that is, that Leary and Kleinberg either “consented” to the August 23 search, or evidenced an ongoing consent to be searched at any time (a “waiver”). Despite the government’s effort to cast this inquiry as one of waiver, the proper analysis focuses on consent. In fact, the Supreme Court has expressly rejected the use of “waiver” analysis in fourth amendment cases in favor of a “voluntary consent” test. See Schneckloth v. Bustamonte, 412 U.S. 218, 235-46, 93 S.Ct. 2041, 2052-57, 36 L.Ed.2d 854 (1973). Thus, to determine whether, by granting any ongoing consent, Leary and Kleinberg effectively “waived” their fourth amendment rights, our analysis is guided by the law developed for analyzing “consent” searches.
Initially, we reject any suggestion that Leary and Kleinberg specifically consented to the August 23, 1984 search. When a government agent claims authority to search under a warrant, “he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). In fact, the Supreme Court has stated that: “A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.” Bumper, 391 U.S. at 549, 88 S.Ct. at 1792.
Similarly, we find no evidence that Leary and Kleinberg granted an ongoing consent to searches by Customs officers. We recently addressed the question of consent in detail, recognizing that the Supreme Court requires that “consent to a Fourth Amendment search must be voluntary in fact and free of coercion under the totality of the circumstances....” United States v. Carson, 793 F.2d 1141, 1150 (10th Cir.) (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59) (emphasis in original), cert. denied, — U.S. -, 107 S.Ct. 315, 93 L.Ed. 2d 289 (1986). In addition, we have noted that consent “is a question of fact to be determined from the totality of all the circumstances [and] [t]he Government has the burden of proving that consent was given freely and voluntarily.” United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir.1985) (citations omitted).
There is no evidence that Kleinberg and Leary granted an ongoing consent to the search of their offices or records by participating in a regulated activity. The federal recordkeeping regulations leave exporters with a substantial privacy interest. Government agents may be required to resort to judicial process to obtain desired records. Absent a statutory scheme authorizing warrantless searches, there is no waiver of constitutional rights in the mere fact that Leary and Kleinberg chose to participate in an activity regulated and licensed by the government. See Marshall v. Barlow’s Inc., 436 U.S. 307, 312-14, 323-24, 98 S.Ct. 1816, 1820-21, 1826, 56 L.Ed.2d 305 (1978).
Nor do we find any ongoing consent in the company’s “open door” policy. As we noted earlier, Kleinberg did not invite the government to rummage through company files and carry out any documents that the agents found interesting. Equally important is the fact that “[w]hen the basis for a search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects.” Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977); see also United States v. Gay, 774 F.2d 368, 377 (10th Cir.1985) (“The scope of a consent search is limited by the breadth of the actual consent itself.”); United States v. Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir.) (“the government may not use consent to a search which was initially described as narrow as license to conduct a general search”), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985). Even if Kleinberg’s policy can be characterized as an ongoing consent to government searches, the government exceeded the scope of that consent in two respects. First, Kleinberg invited government agents to inspect and copy records, not seize them. Second, Kleinberg’s invitation extended only to those documents related to regulated export activities. The government searched and seized records dealing with Leary’s personal and financial affairs and business activities unrelated to exports.
In addition, we find a compelling policy reason to reject the government’s argument. As the regulations indicate, the government encourages voluntary cooperation with requests for export documents and information. Yet the government urges us to find that Kleinberg’s voluntary cooperation has resulted in a waiver of fourth amendment rights. This interpretation of the law would deliver a serious blow to the government’s “voluntary cooperation” efforts and discourage “open door” policies in the export industry.
Accordingly, we find no consent or “waiver” and conclude that both Leary and Kleinberg have had their fourth amendment rights infringed by this search and seizure and may seek suppression of the evidence. We proceed to review the adequacy of the search warrant.
III. Particularity
The fourth amendment requires that warrants “particularly describ[e]... the persons or things to be seized.” U.S. Const, amend. IV. This requirement prevents a “general, exploratory rummaging in a person’s belongings,” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) and “ ‘makes general searches... impossible and prevents the seizure of one thing under a warrant describing another. As to what is be taken, nothing is left to the discretion of the officer executing the warrant.’ ” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965) (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)). See Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988); Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985). “The particularity requirement [also] ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.” Voss, 774 F.2d at 404.
The test applied to the description of the items to be seized is a practical one. “ ‘A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.’ ” United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir.1982) (quoting United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir.1982)). Even a warrant that describes the items to be seized in broad or generic terms may be valid “when the description is as specific as the circumstances and the nature of the activity under investigation permit.” United States v. Santarelli, 778 F.2d 609, 614 (11th Cir.1985); see United States v. Strand, 761 F.2d 449, 453 (8th Cir.1985) (“degree of specificity required necessarily depends upon the circumstances of each particular case”). However, the fourth amendment requires that the government describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow, and “warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.” United States v. Fuccillo, 808 F.2d 173, 176 (1st Cir.), cert. denied, — U.S.-, 107 S.Ct. 2481, 96 L.Ed.2d 374 (1987).
The district court found the Kleinberg warrant overbroad. That legal conclusion is subject to de novo review on appeal. See United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir.1987); United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). Therefore, our task is to determine if the language of the Kleinberg warrant is sufficiently particular to achieve the requirements of the fourth amendment.
The warrant under scrutiny here included only two limitations. First, the documents to be seized had to fall within a long list of business records typical of the documents kept by an export company. Second, those documents had to relate to “the purchase, sale and illegal exportation of materials in violation of the” federal export laws. In this context — the search of the offices of an export company — these limitations provide no limitation at all. The warrant authorizes, and the customs agents conducted, a general search of the Kleinberg offices.
A. The warrant is facially overbroad.
The Kleinberg warrant suffers from three flaws. First, it authorizes a general search in conjunction with a federal crime and is overbroad on its face. In Foss v. Bergsgaard, 774 F.2d 402 (10th Cir.1985), we invalidated a similar warrant. The warrant in Foss authorized government agents to seize documents and records “[a]ll of which are evidence of violations of Title 18, United States Code, Section 371.” Id. at 405. We concluded that “[e]ven if the reference to Section 371 [the federal conspiracy statute] is construed as a limitation, it does not constitute a constitutionally adequate particularization of the items to be seized.” Id.
The government argues that Voss does not apply here because the export statutes describe a much narrower range of criminal activity. We disagree. While some federal statutes may be narrow enough to meet the fourth amendment’s requirement, the two statutes cited by the Kleinberg warrant cover a broad range of activity and the reference to those statutes does not sufficiently limit the scope of the warrant.
Moreover, a series of decisions from other circuits have held that reference to a broad federal statute is not a sufficient limitation on a search warrant. For example, in Roche v. United States, 614 F.2d 6, 7 (1st Cir.1980) the warrant authorized the seizure of books, records and documents “which are evidence, fruits, and instrumen-talities of the violation of Title 18, United States Code Section 1341 [mail fraud].” The court found this limitation to be “no limitation at all.” Id. at 8. The Ninth Circuit has consistently applied the same rule. In United States v. Cardwell, 680 F.2d 75, 77 (9th Cir.1982), “[t]he only limitation on the search and seizure of appellants’ business papers was the requirement that they be the instrumentality or evidence of violation of the general tax evasion statute, 26 U.S.C. § 7201. That is not enough.” The court’s reasoning in Card-well is equally applicable here:
“ ‘[Limiting’ the search to only records that are evidence of the violation of a certain statute is generally not enough.... If items that are illegal, fraudulent, or evidence of illegality are sought, the warrant must contain some guidelines to aid the determination of what may or may not be seized.”
Id. at 78. Where the warrant provides no such guidelines, it is impermissibly over-broad on its face. See also Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987) (warrant limited only by references to the general conspiracy statute and general tax evasion statute did “not limit the search in any substantive manner”); United States v. Spilotro, 800 F.2d 959, 965 (9th Cir.1986) (“effort to limit discretion solely by reference to criminal statutes was inadequate”); United States v. Abrams, 615 F.2d 541, 542-43 (1st Cir.1980) (warrant limited only by reference to records and federal fraud statute is overbroad); In re Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979) (over-broad warrant allowed “seizure of most every sort of book or paper... limited only by the qualification that the seized item be evidence of violations of... ‘18 U.S.C. 286, 287, 371, 1001 and 1014.’ ”).
We agree with the reasoning of these courts. As an irreducible minimum, a proper warrant must allow the executing officers to distinguish between items that may and may not be seized. See 2 La-Fave, § 4.6(a), at 235-36. The Kleinberg warrant does not provide that guidance. An unadorned reference to a broad federal statute does not sufficiently limit the scope of a search warrant. Absent other limiting factors, such a warrant does not comply with the requirements of the fourth amendment. See Andresen v. Maryland, 427 U.S. 463, 480-82, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976).
Nor did the list of business records to be seized provide any meaningful limitation on the Kleinberg search. The warrant encompassed virtually every document that one might expect to find in a modem export company’s office. Again, the fourth amendment requires more. See Id.; see also In re Grand Jury Proceedings (Young), 716 F.2d 493, 498 (8th Cir.1983) (“laundry list of various type of records is insufficient to save the search warrant”); Roberts v. United States, 656 F.Supp. 929, 934 (S.D.N.Y.1987) (“By listing every type of record that could conceivably be found in an office, the warrant effectively authorized the inspectors to cart away anything that they could find on the premises.”); cf. Cardwell, 680 F.2d at 78; Abrams, 615 F.2d at 543; Roche, 614 F.2d at 7; Lafayette Academy, 610 F.2d at 5.
We recognize that some lower courts have found similar warrants to be sufficiently particular. The government relies on United States v. Moller-Butcher, 560 F.Supp. 550, 557 (D.Mass.1983) where the district court found a warrant seeking “records which are required under the Export Administration Act, 15 C.F.R. § 387.13, by all businesses sending electronic equipment outside the United States” to be sufficiently particular. The district court in United States v. Gregg, 629 F.Supp. 958, 966-67 (W.D.No.1986), aff'd 829 F.2d 1430 (8th Cir.1987), approved a similar warrant. We are unpersuaded by these decisions. Neither court clearly explained why the warrant in question is sufficient; the analysis is brief and concluso-ry. Moreover, there are distinguishing features that limit the value of these decisions in our present inquiry.
The government also argues that the facial overbreadth of the warrant is not fatal because any doubts about what was to be seized “could be resolved by resort to the affidavit which was a part of the warrant and which the agents had with them at the location of the search.” Brief of Appellant at 38. We disagree. It is true that the particularity of an affidavit may cure an overbroad warrant, but only “where the affidavit and the search warrant... can be reasonably said to constitute one document. Two requirements must be satisfied to reach this result: first, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference.” 2 LaFave, § 4.6(a), at 241 (quoting Bloom v. State, 283 So.2d 134 (Fla.App.1973)); see Id. cases cited at n. 28; 3 C. Wright, Federal Practice and Procedure § 670, at 723 (2d ed. 1982); United States v. Medlin, 798 F.2d 407, 410 n. 1 (10th Cir.1986) (“When an affidavit is attached to a warrant and incorporated by reference into the warrant, it can be used to cure a lack of particularity.”); United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987) (affidavits did not accompany warrant); United States v. Strand, 761 F.2d 449, 453 (8th Cir.1985) (affidavit accompanied warrant but was not incorporated).
The Kleinberg warrant did not incorporate the affidavit; there is no reference to the affidavit on the face of the warrant. In addition, there is no clear evidence in the record to support the government’s assertion that the affidavit “was a part of the warrant.” Finally, and perhaps most importantly, the search itself was not limited by the affidavit. If the affidavit was available to the agents searching the Kleinberg offices, it certainly was not used to limit the search. The agents seized documents related to transactions, countries and commodities not mentioned in the affidavit. In fact, the agents seized documents unrelated to Kleinberg’s export business. Even if the technical requirements for incorporation were met, it would be improper to allow the affidavit to cure the lack of particularity in the warrant where the government agents relied on the breadth of the warrant, not the specificity of the affidavit, to define the scope of the search. Cf. United States v. Spilotro, 800 F.2d 959, 967 (9th Cir.1986) (“government’s argument that the agents were somehow constructively guided by the affidavit in executing the warrants is unpersuasive”); Lafayette Academy, 610 F.2d at 5 (“[S]elf-restraint on the part of the... executing officers does not erase the fact that under the broadly worded warrant appellees were subject to a greater exercise of power than that which may have actually transpired and for which probable cause had been established. The particularity requirement is a check to just this sort of risk.” (citations omitted)).
B. Information was available to make the warrant more particular.
In addition to being overbroad on its face, the Kleinberg warrant is flawed because information was available to the government to make the description of the items to be seized much more particular. Admittedly, a general description is not always invalid.
“Courts tend to tolerate a greater degree of ambiguity [in the warrant’s description] where law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant.”
United States v. Young, 745 F.2d 733, 759 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). In this case, however, the government’s argument that the warrant was “as specific as the circumstances and the nature of the activity under investigation permit” is untenable. Agent Juhasz’ affidavit in support of the warrant was very specific, alleging the attempted illegal export of a specific product to the People’s Republic of China via a series of specific companies in Hong Kong. Yet none of this information was reflected in the warrant. The warrant could have been limited to documents related to the Micro-tel transaction, to the companies suspected of participating in the illegal export, to the countries involved in the route of the export, Hong Kong and
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 22? Answer with a number.
Answer:
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songer_usc1
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28
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES v. CHICAGO, B. & Q. R. CO.
No. 5964.
Circuit Court of Appeals, Seventh Circuit.
April 12, 1937.
Harry W. Blair, Asst. Atty. Gen., John J. Boyle, U. S. Atty., of Madison, Wis., and D. B. Hempstead and A. C. Wiprud, Sp. Assts. to the Atty. Gen.
Andrew Lees, of La Crosse, Wis., and Andrew C. Scott and J. C. James, both of Chicago, 111. (Bruce Scott, of Chicago, 111., of counsel), for appellee.
Before SPARKS, Circuit Judge, and BRIGGLE and BALTZELL, District Judges.
SPARKS, Circuit Judge.
This is an appeal from a judgment of the District Court assessing damages in condemnation' proceedings instituted by the Government with respect to the navigation project of the Mississippi River, authorized by an Act of Congress approved January 21, 1927, 44 Stat. 1010. Two actions at law are involved, and numerous questions are presented, which render necessary a rather full statement of the issues of both causes and the manner in which they were disposed of.
On September 19, 1931, the Government filed its action No. 3683, to condemn 2.9 acres of land in the city of Alma, Wisconsin. It was alleged that that land was a part of the site of Lock and Dam No. 4 as contemplated by the project, which was about to be begun. The action was brought against appellee and numerous other corporate bodies and natural persons, who, it was alleged, constituted, as nearly as the Government could ascertain, all persons claiming to be the owners or occupants of those lands, or claiming any right, title, equity or interest therein.
On August 9, 1932, the Government amended its original petition by reducing the amount of land sought to be condemned to 1.6 acres, and retained as defendants the appellee and several hundred others who, as alleged, were claiming some interest therein. The amended bill further stated that the proposed dam should have a crest elevation of 667 feet mean sea level, intended to provide a pool no higher than 667 feet, mean sea level at the dam.
On August 17, 1932, the court, over the Government’s objections and exceptions, sustained appellee’s motion to make the amended petition more specific, and ordered the same done by filing plans of the lock and dam to be built, or sufficient information as to the structural and engineering features thereof, to enable appellee to determine and make proof of the damage to the remainder of its property resulting from the construction, operation and maintenance of the lock and dam.
On December 3, 1932, the Government complied with this order by amending its amended petition, in which it was stated, among other matters, that the dam would be of a nonnavigable type with a controlled spillway section 1,355 feet long, having a crest elevation of 667 feet mean sea level datum; that the top of the lock and guide walls would be at elevation 672 feet mean sea level, and that the spillway would be so controlled as to maintain a pool elevation at 667 feet. The official map filed with the amendment disclosed the elevation of the pool along the upper side of the dam to be 667.
Following the hearing on the amended petition, an order was entered January 14, 1933, granting the condemnation of the property described in the amended petition, and appointing commissioners to fix the compensation for its taking. On January 25, 1933, the Government applied for immediate possession of the condemned 1.6 acres, alleging the value thereof to be not in excess of $500. On the same day the court granted the application conditioned on the deposit of $110,000 with the court, as security for the payment of such just compensation as might be finally awarded. This order was complied with without objection or exception on the part of the Government. On January 31, 1933, on the motion of appellee, and over objections and exceptions by the Government, the court amended its order granting condemnation and appointing commissioners by adding to that portion of the order directing the commissioners to ascertain, award and report the compensation for the property taken as described in the amended complaint, the following words, “together with all damages to the remainder of respondent’s property resulting from the construction and operation of the lock and dam described in the petition herein.”
Pursuant thereto, the commissioners made, and on June 7, 1933, filed, their award for the value and damages to be sustained by reason of the appropriation. They were made in varying amounts to eleven named respondents in the aggregate sum of $4,627, and to appellee for the taking of its interest in the 1.6 acres of land in the sum of $160, together with damages to its roadbed, track and bridge across Beef River from Alma to Trevino, in Buffalo County, Wisconsin, in the sum of $84,296. From all of these awards the Government appealed on June 29, 1933, to the District Court.
On October 16, 1933, the Government filed its petition in law, No. 3767, against appellee and other defendants, to condemn certain lands in fee (none of which was owned by appellee), and certain easements in lands to an elevation of 670 feet above mean sea level datum (1912 adjustment) for flowage in connection with Lock and Dam No. 4. Included in this easement sought to be appropriated was a flowage easement upon that portion of appellee’s right of way within the area described in the petition which extends northwesterly, across what is known as Beef Slough, to a point about six miles above the 1.6 acre tract condemned in cause No. 3683. The petition in No. 3767 contained the following allegation:
“That your petitioner by naming herein any person or persons as owners or otherwise interested does not admit or intend to admit that any person or persons so named have any right, title, estate, or interest in or to the bed of the Mississippi river below ordinary high water mark, or the meander line, as against your petitioner in ■the improvement of navigation of said river.”
On December 11, 1933, the District Court granted the condemnation, and on motion of the Government it made an order on January 23, 1934, reducing the easements condemned to an elevation of 667 feet above mean sea level datum (1912 adjustment). This included the easement of appellee’s right of way. The commissioners filed their award on May 28, 1934, for the flowage easement condemned on appellee’s right of way in the sum of $81,194. From this award the Government appealed to the District Court.
The claims of appellee before the commissioners in causes numbered 3683 and 3767 embraced approximately the same portion of its right of way. All the flowage rights on appellee’s property sought by the Government in the second suit had been included in the original suit. For the purpose of trial they were.consolidated in the District Court. The cases were tried to a jury which, at appellant’s request, returned a special verdict by way of answers to interrogatories finding for appellee in the aggregate amount of $347,811.65, that is to say, $400 by way of compensation for appellee’s interest in the 1.6 acres, and $347,-411.65 for damages proximately caused by the continuous maintenance and operation of the Alma dam at a pool level no higher than 667 feet above mean sea level at the dam.
At and above the Alma dam for a distance of ten or twelve miles, the Mississippi valley consists of a flat alluvial flood plain about three miles wide, extending northwesterly from the dam between high rock bluffs. Larger floods cover the entire valley floor, except for occasional ridges and knolls which extend above the extreme high water. The main channel of the river in this area is the boundary between Minnesota and Wisconsin.
From a point about twelve miles upstream from the dam, the Mississippi valley floor lies at a much lower level and is covered with water ranging from a few feet to forty feet in depth, constituting a segment of the river, known as Lake Pepin, approximately twenty miles in length, and from two to three miles wide in places.
The two longest tributaries of the Mississippi in this region are the Beef and Chippewa rivers, which enter from the Wisconsin side. The Beef River drains about 440 square miles and enters the Mississippi, through Beef Slough, about a mile and' a half above the dam. The Chippewa drains an area of 9480 square miles and enters the Mississippi about 10.7 miles above the dam. Both tributaries have valleys similar to the Mississippi but vary in width in proportion to the size of' the stream. The valley of Beef River is about three-fourths of a mile wide near its mouth and becomes narrower towards its source. The Chippewa is about four miles wide at its mouth, and narrows down to about a fourth of a mile at a point fifteen miles from its mouth. The floors of these tributary valleys are also subject to inundation when they are in flood. A small tributary, known as Rush River, draining an area of about 200 square miles, enters Lake Pepin from the Wisconsin side twenty-eight miles above the dam. It is about eighty feet wide at its mouth.
Appellee’s railroad in the vicinity of Alma extends along the easterly bank of the Mississippi. Originally a portion of its tracks in front of Alma, and at the site of the lock and dam, was constructed on trestles, which was subsequently filled in with sand, gravel, earth, or other suitable substance, under claimed authority of an ordinance of the village of Alma, dated February 3, 1902. Upstream from the dam the railroad was constructed along bluffs for a distance of one and one-half miles, from which point, prior to 1928, it followed a winding course for several miles along the easterly bank of Beef Slough, continuing northwesterly and inland through the village of Nelson, Wisconsin, across the Chippewa River bottoms, over the main channel of the Chippewa at a point about one and one-half miles from the Mississippi, and then along the easterly shore of Lake Pepin. The railroad crosses Rush River at a point about one and one-half miles from the Mississippi. Rush River is located seventeen miles northwesterly from the Chippewa and twenty-eight miles from the Alma dam. Prior to 1928 the railroad crossed Beef River just above the point where it entered the channel of Beef Slough, which is about one and one-half miles upstream from the dam.
In 1927 appellee obtained a permit from the Secretary of War, revocable at the will of the latter, authorizing it to dredge Beef Slough at points near Alma to a depth not exceeding thirty feet nor within one hundred feet of any wing dam or main bank, and to use the dredged material for railroad embankment in accordance with plans shown on the drawings attached thereto, subject, however, to the conditions set foith in the permit forbidding impairment of navigable capacity, providing for the protection or removal of structures when future operations of the Government might require, without cost to the Government, and prohibiting unreasonable interference with navigation. The maps attached to the permit disclosed the work sought to be done and the manner in which it was to be accomplished. Pursuant to that permit appellee constructed an embankment across the abandoned channel of Beef Slough, diking or damming it in two places. It constructed a bridge, however, in the center of this embankment over a diversion ditch, through which the waters of Beef River were diverted at right angles to Beef Slough, and permitted to run into the Mississippi. In the state of nature, the waters of Beef River flowed into the channel of Beef Slough across which the embankment was constructed. That channel was perhaps three hundred feet in width, and in one place the water in Beef Slough was from ten to fourteen feet deep. The diversion ditch was sixty feet wide and five feet deep.
The primary question here presented first arose in cause No. 3683, when the court ordered the Government to make its petition more specific by filing plans of the proposed lock and dam, or sufficient information with respect thereto, to enable appellee to make proof of damage, if any, to the remainder of its property other than the 1.6 acres therein- sought to be condemned for the site of the lock and dam.
It is contended by the Government that it was entitled to appropriate the 1.6 acres, and in so doing it was not liable to appellee in that action for damages accruing by reason thereof to the remainder of appellee’s property. We do not understand this to be the law. In United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 163, 55 L.Ed. 165, 31 L.R.A.(N.S.) 1135, the Court said: “Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted.” That rule has been undeviatingly followed, both by prior and subsequent decisions, and it constituted ample authority to- warrant the court requiring appellant to make its complaint more specific by describing the intended use of the 1.6 acres. Before making the order the court was not required to pass upon the merits of appellee’s claims for they were not yet filed. Indeed, they could not be, until the information upon which they were based was presented by appellant as a result of the order.
At the trial the Government’s theory was developed more clearly, qnd appellee’s claims were presented with particularity. The latter extended over a territory twenty-eight miles in length immediately above the dam, and included damages at Beef Slough, the Chippewa river and valley and Rush River, which appellee claimed were proximately caused by the dam impounding the water.
In the meantime, after the commissioners had made their award in Cause No. 3683, which included damages to appellee’s property at Beef Slough, the Government filed its second suit, No. 3767, by which it sought to condemn a limited flowage easement at Beef Slough, alleging that it had already appropriated the land upon which the dam was to be- constructed. This, of course, included the 1.6 acres referred to in cause No. 3683. At this time there had been a change in the personnel of the District Court by virtue of the appointment of a new judge. The matter was referred to commissioners who reported damages in the second suit and from that report appellant also appealed to the District Court.
Both appeals being consolidated for trial, appellee proceeded on the theory, which the court adopted, that by virtue of the physical appropriation of the 1.6 acres, the Government impliedly agreed to compensate appellee for all proximate damages to its remaining property occasioned by the construction and use of the dam, and that recovery therefor was authorized by the Tucker Act, 28 U.S.C.A. § 41 (20); that unless appellee presented all of its claims for proximate damages to its remaining property at the time of the physical appropriation of the land it would be barred thereafter from recovering those omitted. Obviously appellee’s contentions in these respects are sound. True, appellee was’permitted subsequently to prove damages at Beef Slough which already had been proved, over the Government’s objection, in the first suit, but that was because of the Government’s voluntary act in bringing the second action, which seems to us to have been superfluous, and inconsistent with the rule in United States v. Grizzard, supra. If appellee had not asked that the complaint in the first action be made more specific, or if it had not presented its claim in that action for damages to its remaining property, but had merely gone to award on the value of its interest in the 1.6 acres of land, it might have been placed in a very embarrassing situation in its effort to recover damages to the remaining property on the theory of an implied contract, especially if the Government had chosen not to file any subsequent action for flowage easements, and certainly it was not necessary for it to do so. Moreover, if, under such circumstances, it subsequently filed the second suit for the flowage easement at Beef Slough, that of itself would hare furnished no basis for proving damages at the Chippewa or Rush river, for the injurious flow-age at Beef Slough was not the cause of the damage at the other places. The primary cause of the damage at each place was the construction and use of the dam on the land that was physically appropriated for that purpose, including the 1.6 acres. The Government contends, however, that as a result of the court’s theory it was compelled to accept and pay for more rights than it asked. This might be true, under a given state of facts, with respect to the second suit, and it furnishes an additional reason for the consolidation. The objection is not tenable as to the first action, because by its filing the Government impliedly agreed to pay for all damages to the remaining property, proximately caused by the use of that which it had physically appropriated. Hence it will be presumed to have demanded the right to cause the damage for which it was liable.
The character of appellant’s contention in this respect would seem to recognize the rule in the Grizzard Case, supra, and to manifest a legitimate purpose to place appellee, if it could, in the position to which we have just made reference. Hence, we think the court properly consolidated both cases for trial, thus not only avoiding any duplication of damages, and perhaps a multiplicity of suits, but securing to appellee an opportunity to have adjudicated all of its damages, if any, for which the Government was liable by reason of the physical appropriation of appellee’s land for its intended use.
True, there may have been instances of condemnation of land by the Government, where the taking constituted a sufficient basis for an implied promise on the part of the Government to compensate the owner for all proximate damages to his remaining land, and yet no damages were allowed. This was not because of any departure from the rule of measurement, but because the damage was uncertain, remote, speculative, or not proximately caused by the taking, or was caused by some intervening agency for which the Government was not liable. Likewise there have been cases where there was no physical appropriation, hence there was no implied promise, and the actions were based solely on tort for which the Government is never liable, and for which no citizen can sue. None of these cases is in conflict with the Grizzard Case. Illustrative of these cases is Christman v. United States, 74 F.(2d) 112, decided by this court. There an old dam in the Ohio River, at Louisville, was replaced by a new one eight feet higher tnan the old one. It was of modern type which permitted the wickets to be lowered, and they were always lowered in time of flood, • so that at those times the river had an unobstructed flow. Appellant owned a farm on a nonnavigablé tributary creek of the Ohio. The mouth of the creek was 54 miles up-stream from the dam, and the farm was 4 miles up the creek. There was no permanent filling of the creek channel as a result of the new dam. A part of Christman’s land was overflowed by the creek as a result of freshets from adjacent hills, and by backwater from the Ohio in times of flood. That had always been true and the dam had not affected the frequency, the extent or the duration of the overflows. The Government had not appropriated any part of the owner’s land by condemnation, or otherwise, and under those circumstances we sustained the finding of the District Court that there was no damage as a proximate result of the new dam for which the Government” was liable.
In United States v. Chicago, B. & Q. R. Co. (C.C.A.) 82 F. (2d) 131, 106 A.L.R. 942, the Government had condemned a certain floodway easement on and over a part of this appellee’s right of way and embankment near Hastings, Minnesota. It was made necessary by the construction of a dam in the Mississippi, as a part of the general navigable improvement plan of that river, out of which the subject matter of the instant case arose. The court there, in a clear and well-considered opinion, distinguishes the classes of cases to which we have referred, from the rule in the Grizzard Case, which it followed. It is sufficient to say, without further discussion, that we concur in the conclusions of the Eighth Circuit in that case in following the rule in the Grizzard Case.
It is contended by the Government that the verdict of the jury was based on damages which Were consequential, remote and speculative. We think it can not be denied that ail the damages covered by the verdict were indeed very real, and were quite conservatively estimated on substantial evidence. But, of course, if they were not proximately caused by the physical appropriation of the 1.6 acres, and the uses to which it was put, the verdict and judgment to that extent would be erroneous. Aside from the questions hereinafter discussed, however, we are convinced that all the damages covered by the verdict were proximate, and were not speculative, consequential or remote.
The record is quite voluminous and it would be impracticable to attempt to treat in detail the evidence affecting each item of damage. As this contention involves questions of fact we shall consider generally the evidence which we think substantially supports the verdict and judgment. The soil in this area is quite subject to erosion. The tributary rivers here involved carry enormous amounts of silt annually into the Mississippi which in turn, before the construction of the dam at Alma, carried it, or a greater portion thereof, down stream. The Chippewa, due to the declivity of its channel, has a very rapid flow, and hence deposits more silt in the Mississippi than any other stream in that area. It is illustrative, however, of what happened in a lesser degree with respect to all the streams. When the Mississippi was at normal low water mark it readily received the silt from the Chippewa, but at high water stage the waters of the Mississippi backed up into the mouth of the Chippewa, thus retarding the Chippewa’s flow and causing the silt to be deposited in its bed. When the waters subsided in the Mississippi, the current of the Chippewa again carried its silt, and much of that which had been deposited, into the Mississippi. It was said that the excessive deposits of silt from the Chippewa in years gone by had raised the bed of the Mississippi at this point, which resulted in the formation of Lake Pepin, just above it. The deposit of silt in the Chippewa, under circumstances as above stated, had caused the waters of the Chippewa to overflow its banks, thus causing distributaries, some temporary, and others oJ; a more or less permanent character. It was said, without denial, that Beef Slough had its origin, many years ago, as one of such dis-tributaries. It wended a devious course down the Chippewa Valley and entered the Mississippi at a point about nine miles below the mouth of the Chippewa. Fifty years ago Beef Slough was navigable, as was also the Chippewa, for quite a distance above its mouth. A few industries were located upon Beef Slough and used it as a means of transportation, the principal one being a logging company, which conducted an extensive business. The waters of Beef River likewise carried enormous amounts of silt, and on account of excessive deposits in its bed, it became less navigable throughout the years, and for that reason the logging company ceased business and moved its plant in 1889. The course of Beef Slough in numerous places has changed by the formation of distributaries, and many places which used to constitute the bed of the Slough have been covered with trees and vegetation for many years and are now used as pasture land. For many years there have been no industries located on it, and it has not been used for navigable purposes. Several years ago the Government constructed a dam and wing walls at or near the mouth of the Slough for the purpose of protecting and preserving the channel of the Mississippi against the ravages of the Slough, and they are referred to as a matter of special care to the Government in the permit issued to appellee by the Secretary of War, which has been hereinbefore referred to.
The damages awarded by the verdict were caused by the necessity of appellee raising and protecting its embankment, and raising and extending its bridges. They are especially referred to in interrogatories numbered 7 to 28, inclusive. The thirtieth merely asks for the total amount of the damages. Aside from the question of liability, it is obvious to us that the damages referred to in the 7th and 8th interrogatories were proximately caused by the dam. It would seem that this fact was conceded by the Government, except as to amount, by filing its second suit.
The other items of damage are based on the theory that the permanent raising of the water in the Mississippi above its natural flow will hold back the natural flow of its tributaries, causing the deposit of silt therein, thus raising the floors of the tributaries, which in turn will cause their overflow and the formation of distributaries, thereby flowing the water against appellee’s embankments, which in their present condition are not of sufficient height to withstand it, nor are their bridges of sufficient height and length to permit the water to pass. There is no doubt of the happening of this condition. It was not controverted. The only uncertainty involved related to the time when it would occur. The jury’s answers in this respect were based on substantial evidence from witnesses whose reputation and integrity were unquestioned and whose ability and knowledge were unassailed. We think the answers were fully justified, and that the damages awarded were the proximate result of the building of the dam; that there was no independent intervening” cause; and that the damages were neither remote, consequential nor speculative.
The public easement of navigation is limited to the natural levels, widths and flows of navigable streams, and riparian owners have a right to erect and maintain their properties in reliance upon those limitations. True, the burden of the natural servitude may be increased by the Government, but not without just compensation. United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L. Ed. 539; United States v. Chicago, B. & Q. R. Co., supra; United States v. Wheeler township (C.C.A.) 66 F.(2d) 977. Appellee’s properties were constructed in reliance upon the natural level, width and flow of the Mississippi in this area. True, it was subjected to attendant inconveniences and perhaps- damage by floods and temporary high waters, but appellee’s properties were constructed with that in view. The line of ordinary high water divides the upland from the river bed. The river bed is the land upon which the action of the water has been so constant as to destroy vegetation. It does not extend to nor include the soil upon which grasses, shrubs and trees grow. Harrison v. Fite (C.C.A.) 148 F. 781. Beyond that point the Government can not go without compensation for proximate damages.
It is contended by the Government that the impounded water does not, and will not, extend beyond the ordinary high water line. The' location of this line was disputed. The answer to interrogatory No. 6, submitted at the request of appellant, settles that dispute so far as this court is concerned, for it is supported by substantial evidence. A preponderance of the evidence supports appellee’s contention that the impounded water will extend above the ordinary high 'water mark as established by the jury, especially if the water is maintained at a mean'sea level of 667 feet at the dam, as provided by the plans and as now constructed. The Government attempts to parry this fact by the statement that, although the construction is sufficient to create such a mean sea level at the dam, the Government intends to maintain at that point only such water level as will maintain a mean sea level of 667 feet throughout the pool. It accordingly asked, at the conclusion of the evidence, for a nunc pro tunc order permitting it to amend its complaint by substituting the words “throughout the pool area” for the words “at the dam,” in the following averment: “The dam shall have a' crest elevation of 667 mean sea level intended to provide a pool no higher than 667 at the dam.” This request was denied by the court and we think rightly so. The dam was constructed, the right of use to its full capacity was fixed, and appellee’s damages could not then be limited by an averment that the Government did not intend to exercise its full right. Moreover, an elevation of 667 throughout the pool would include that portion of the pool next to the dam, and no matter what the elevation be at the dam it is bound to be higher further up stream. It can not be the same at one time throughout the pool. Under these circumstances the railroad’s compensation must be based upon the maximum use of the right acquired, rather than.upon its maximum intended use. Western Union Telegraph Company v. Polhemus (C.C.A.) 178 F. 904, 29 L.R.A.(N.S.) 465.
It is further contended by the Government-that the Chippewa and Beef rivers and Beef Slough are navigable waters of the United States, and that Beef River and Beef Lake are navigable waters of Wisconsin, hence the Government may, in the improvement of navigation, permanently raise the water level to the line of ordinary high water without liability. The answers to interrogatories numbered 1, 2, 3, 4 and 5 are determinative of this contention of navigability adversely to appellant. The answers are supported by substantial evidence which is quite convincing. See Harrison v. Fite (C.C.A.) 148 F. 781. By submitting these interrogatories appellant must have assumed, as we do, that they involved mere questions of fact. The answers thereto being supported by an abundance of substantial evidence we can not disturb them.
It is also contended by the Government that appellee’s property at certain places is constructed within the bed of the Mississippi. This contention refers more particularly to the 1.6 acres, and the embankment and tracks across Beef Slough. The answers to the interrogatories are utterly inconsistent with this contention. A perusal of the record convinces us that the contention is not sound, and the filing of tlie two condemnatory actions, wherein the Government impliedly agreed to pay damages therefor, gives us further assurance that our conclusion in this respect is correct. Appellant, however, regards the permit of the Secretary of War, and the application therefor, as an admission on the part of appellee that the Slough was a part of the Mississippi and was navigable. The facts of this record, however, disclose that the Slough was never a part of the Mississippi, except as a tributary, and that neither the Government nor the State of Wisconsin has regarded it as navigable for almost fifty years, except for the Government’s claim in the belated hours of these actions. The acts of appellee with respect to the permit may well be considered as merely precautionary, and they raise no inference against it. It is also noted that the land office surveyors had meandered the Slough and perhaps all other waters here involved, but that fact raises no inference as to their navigability because the land office had no authority to determine that fact. Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771; United States v. Ladley (D.C.) 4 F.Supp. 580.
Eight years after appellee had constructed its embankment across Beef Slough, and almost two years after the trial of these cases, the Secretary of War revoked the permit. This was of no avail to the Government’s right to prevail in these actions, first, because the waters of Beef Slough are not navigable; second, because the dredging had already been accomplished, and before it could be removed under the terms of the permit, if at all, it must have appeared that future operations by the United States required an alteration in the position of appellee’s authorized structures, or in the opinion of the Secretary of War, it would cause unreasonable obstruction to the free navigation. None of these facts were found by the Secretary of War, and there was no hearing upon them. We think Miami Beach Jockey Club v. Dern, 65 App.D.C. 369, 83 F.(2d) 715, upon which the Government relies, is not in point. In that case there was a hearing before any work had been done, and the waters involved were navigable.
It is further contended by the Government that appellee failed to establish any interest in the 1.6 acres condemned in Cause No. 3683. The action was required to be prosecuted in accordance with the laws of Wisconsin. See 33 U.S.C.A. § 591. It is the law of that state that where proceedings are instituted to condemn property, and the petition recites, as it must, title and ownership or interest by the defendant, the condemnor is thereby bound by such expressed recognition of title, and cannot be heard to assert the contrary nor compel one recognized as owner to prove or defend his title. Murray Hill Land Co. v. Milwaukee L., H. & T. Co., 126 Wis. 14, 104 N.W. 1003; Skalicky v. Friendship Electric Light & Power Co., 193 Wis. 395, 214 N.W. 388. The complaint in No. 3683 did not directly allege ownership in appellee, but rather a claim of ownership, and we are inclined to think that was sufficient under section 32.04, Wisconsin Statutes (1929). During the trial the Government never made any claim that it owned any part of this land, but tacitly acquiesced in appellee’s claim of ownership, and by instituting the action impliedly promised to pay for its value. Some of the purported title papers introduced without objection perhaps did not constitute the best evidence, such as uncertified copies and the like, but under the issues presented, appellee was not required to prove a merchantable title. See Tenney Telephone Co. v. United States (C.C.A.) 82 F.(2d) 788. There was no adverse claim presented to appellee’s claim, and there was testimony given that the 1.6 acres was'a part of appellee’s right of way through Alma, which it had owned and used as a right of way since 1884. This we think was sufficient to establish appellee’s claim of title.
The Government further contends that admittedly the By Golly Creek bridge was erroneously constructed too low to meet conditions as they were before the dam was built, and that is true. But appellee at the trial expressed its willingness to pay for curing that error, and its correction by appellee was contemplated by interrogatory 12, submitted by appellant. The answer is responsive thereto in view of the evidence with respect to the entire cost of the new bridge as it should now be. In other words, the evidence discloses that appellee will be required to pay considerably more for the new bridge at that point than the amount of the award in answer to interrogatory No. 12.
Many other contentions were made by the Government, including divers objections to the court’s rulings with respect to the admission of evidence. 'All these we have examined where there were proper objections made and proper exceptions saved, and we find no reversible error.
The Government also contends that the court erred in giving and refusing to give certain instructions. We are convinced that those refused were properly denied, and that those given, considered as a whole, constituted as fair a presentation of. the law on the issues involved as the Government was entitled to.
The Government further contends that the court erred in not requiring the jury to return a separate verdict in each case. There is no merit in this contention. At the close of the evidence the Government filed its written motion for a special verdict and tendered therewith 37 interrogatories for the jury to answer. The motion was entitled United States * * * vs. Certain land in Buffalo County, Wisconsin, containing 1760 acres; * * * et al., No. 3683 Law, No. 3767 Law. Of the interrogatories submitted to the jury those numbered 1 to 28 inclusive, were identically, or substantially, the same as twenty-eight of those requested by the Government. Those submitted to the jury, numbered 29 and 30, were not included in the Government’s request. The answer to interrogatory 29 is a complete answer to the question raised by the issues in the first action according to appellant’s contention. That, plus the answer to interrogatory 30, is completely responsive to the issues raised in the first action according to appellee’s theory, and it includes the issues attempted to be raised by the second suit. The
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_usc1
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12
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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.
AMERICAN LEGION POST NO. 90 OF VILLAGE OF MAMARONECK et al. v. FIRST NAT. BANK & TRUST CO. OF MAMARONECK et al.
No. 396.
Circuit Court of Appeals, Second Circuit.
July 22, 1940.
Burton C. Meighan, Jr., of New York City (Meighan & Necarsulmer and Louis A. Marchisio, all of New York City, and James S. May, of White Plains, N. Y., on, the brief), for plaintiffs-appellants.
Monroe J. Cahn, of White Plains, N. Y. (Lynch & Cahn and Harold M. Miller, all of White Plains, N. Y., on the brief), for defendants-appellees.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
CLARK, Circuit Judge.
In 1921, 83 citizens of the town of Mamaroneck subscribed a total sum of $15,641.75 towards the purchase of premises to be used for the erection of a Community House as a memorial to the veterans of the World War. Title to the land purchased was taken in the name of one McArdle, one of the subscribers to the fund. After this first flush civic spirit seems to have lagged somewhat, and funds were not forthcoming for the building of the house itself. In due time, therefore, decision was made by the subscribers to sell the premises, and by November, 1928, a purchaser was found for the land for the sale price of $160,000.
Meanwhile McArdle had died, and his wife, who took title to the property, deeded it to The First National Bank and Trust Company of Mamaroneck (the “old bank”) according to the arrangements which had been made on the advice of a title company for the proper effectuation of the contract of sale. The old bank accepted the conveyance, entered into the contract of purchase, eventually conveyed the property to the purchaser, and received back part of the purchase money in cash and a purchase money mortgage in the sum of $130,000 payable by March 1, 1930. Payments were made in due course, so that, by May IS, 1930, the old bank had received a final payment of the entire purchase sum, together with interest accruements. It made certain disbursements of expenses and payments on the principal to the subscribers. In January, 1932, the “new bank,” First National Bank of Mamaroneck, was organized to assume all the liabilities and obligations of the old bank; but it failed in January, 1933, at which time the Comptroller of the Currency found it to be insolvent and appointed a receiver for it. The old bank was likewise declared insolvent and a receiver appointed in February, 1934. The payments made against the account by the two banks totaled $102,318.81, leaving a balance on hand of $60,964.39, the amount here involved at the time of the failure of the new bank. The matter was before this court and these facts are recited in the case of Meeker v. Durey, 2 Cir., 92 F.2d 607, involving the issue of income tax liability on these funds. The present questions are whether the fund was held by the banks as a general deposit or as a trust, and if the latter, whether or ■ not certain securities set aside by the banks for their trust funds pursuant to statute may now be availed of for the payment of the balance due. The district court found only a general deposit and allowed plaintiffs merely their general claim.
The plaintiffs are a portion of the original subscribers .to the fund who are suing on behalf of themselves and all others similarly situated. The court below found that they were proper representatives of all the subscribers, and that this action was properly brought as a class suit under former Equity Rule 38, 28 U.S.C.A. following section 723, and Federal Rule 23, 28 U.S.C.A. following section 723c; that portion of the judgment below is not the subject of appeal. Nor is there appeal from so much of the judgment as allots to the subscribers a refund of income taxes in the amount of $20,188.99 secured by the receiver as a result of Meeker v. Durey, supra. In that case, which was a suit by the receiver of the new bank against the estate of the Collector of Internal Revenue, the plaintiff claimed a refund of taxes assessed against him as trustee or fiduciary in respect of this same fund. We held that the bank was not taxable as a fiduciary, since under New York law the deed to McArdle and the later deed to the bank gave rise only to a so-called passive trust; and we made an alternative ruling that even if the bank was a fiduciary, the income, consisting of gains on the sale, was not accumulated for the benefit, of unborn or uncertain persons. Hence the income, if any, was taxable to the subscribers, and' not to the bank.
The controlling statutory provisions in issue here are contained in a lengthy .'section of the Federal Reserve Act, § 11 (k), 12 U.S.C.A. § 248 (k), authorizing and empowering the Board of Governors of the Federal Reserve System to grant by special permit to a national bank applying therefor the right to act as trustee and in various other named representative capacities, including those of executor, administrator, or receiver, “or in any other fiduciary capacity” in which competing state banks may act. It is provided that national banks exercising the powers enumerated in this subsection “shall segregate all assets held in any fiduciary capacity from the general assets of the bank and shall keep a separate set of books and records showing in proper detail all transactions engaged in under authority of this subsection.” Then it is stated that “No national bank shall receive in its' trust department deposits of current funds subject to check or the deposit of checks, drafts, bills of exchange, or other items for collection or exchange purposes.” Next follows the provision specifically in issue: “Funds deposited or held in trust by the bank awaiting investment shall be carried in a separate account and ■ shall not be used by the bank in the conduct of its business unless it shall first set aside in the trust department United States bonds or other securities approved by the Board of Governors of the Federal Reserve System.” And the statute continues that in event of the bank’s failure the owners of the funds held in trust for investment shall have a lien on these securities so set apart, in addition to their claim against the estate of the bank.
In this case each of the banks here involved treated the funds received from the sale of the Community House property as part of its trust funds, carried the accounts thereof in its trust department, and set aside securities for the protection of this fund and its other trust funds. The method which was followed was not the allocating of separate securities of the bank to each trust fund, but merely the earmarking for the trust department of securities generally to cover the shifting balance due the trust department for all its trust funds. Since the assets of the bank set aside for the trust department are adequate to cover all the trust accounts, including the account now under discussion, it is obvious, and indeed not disputed, that the bank intended to protect this fund as a trust fund. The objections made are really three: that the fund was only a general deposit without priority, and the course of dealing indicates an intention that the bank should use the funds for its general purposes; that there was no agreement with the subscribers to hold the funds “for investment,” but only for distribution, thus taking the matter outside the quoted statute; and that, since no securities were set aside separately for .this particular fund, there were no securities available to which priority might attach.
1. We are clear that the hanks held the funds in a fiduciary capacity, and that the arrangement created something more than a general deposit. It is true that the court below made a specific finding of fact, which it repeated as a conclusion of law, that no agreement was at any time requested of, or made by, the old bank or the new bank that the said money should be held in trust or deposited in the trust department of the bank, or be invested on behalf of the contributors, or in any manner secured, with a further finding that the batiks carried the account in the trust department merely as a matter of convenience to themselves. There was testimony by the president of the old bank indicating that the funds had been received in trust, but this the court seems to have rejected. We think effect may he given to the finding to the extent of its holding that no express agreement as to the manner of carrying the fund was made; but a conclusion of law that this account was only a general deposit does not necessarily follow therefrom and is in truth at variance with other facts either admitted or clear of record.
As early as 1921 the McArdles executed a formal document expressly declaring that title to the property was held by Mr. Mc-Ardle “only as an intermediary” until it should be determined by the persons in charge of the Community House movement that it should be deeded to some one else, and they thereby agreed to deed the same when and how properly directed. From time to time thereafter McArdle was referred to as trustee of the Community House property. The bank, when it took title with full knowledge of this arrangement, necessarily did so as a similar “intermediary.” True, the language used seems to signify that McArdle first and the banks later were not to be express trustees. Indeed, it is made clear throughout that the subscribers to the fund or a committee thereof should give directions as to the disposition of the property. On the other hand, it is quite evident that these parties were acting as fiduciaries, and the characterization of the situation as a passive trust in our earlier decision seems the most apt designation. Certainly while the bank held title to the real estate it was something more than a mere debtor to the subscribers for the amount invested in the realty. When it collected the proceeds, it could hardly have altered its character to that of a mere debtor unless it acted in a manner clearly evidencing its intent to do so and unless the subscribers knew of and acquiesced in the change. Neither of these conditions is shown to have occurred.
Stress is placed upon the circumstance that the attorney for the subscribers, who was also attorney for the bank, requested deposit of tlie fund in the interest department of the hank, and later requested that the deposit be held so as to produce interest. But it is difficult to see why this circumstance, if it has any persuasive force, does not tend to indicate that the fund was held by the bank as a trust, rather than as a general deposit. A bank acting as trustee or fiduciary would be expected to produce an increment on funds in its hands. It would also naturally receive a fee for its services, as was the case here.
We turn to the “course of dealing” relied upon by the district court to show that the banks could use the funds for their general purposes. All incidents referred to seem either undecisive or even more suggestive of the fiduciary relationship than of the contrary. . First is the cii-cumstance just noted — that interest was credited at the rate of 3 per cent — a course which would seem to be more natural for trust funds than for general deposits. Next reference is made to the fact that the money was left with the bank for a long period of time. Such delay is explained by necessary incidents of the entire transaction, including the litigation with reference to income taxation; the delayed payments provided for in the contract of sale; the necessity of ascertaining who were the present representatives of the original subscribers, leading to the institution of a suit in the state court to determine such ownership; and the financial difficulties, the attempted reorganization, and the later receiverships of the banks. Finally, the large amounts disbursed 'from time to' time for expenses and attorney’s fees, directed by the committee, seem without particular significance. Of 'course, it was the committee, not the bank, which was in general charge of the transaction. But that, we think, goes no further than to show the relationship to be a passive, rather than an express, trust.
We conclude that, notwithstanding the district court’s finding, the account must be considered as one held by the banks in a fiduciary capacity, and not as a general account. In re Kountze Bros., 2 Cir., 103 F.2d 785, is not in point. There funds were deposited for a claimed special purpose, but we held the proof insufficient to show that there was an. intended segregation from the general accounts. There the private bankers did no.t hold the funds in a fiduciary capacity.
2. Perhaps more serious is the further claim that these were not funds held in trust “awaiting investment” and hence without the statute. We think, however, that this is too narrow a construction of the statute, and really defeats its intent. If trust funds held for investment are subject to the. statute, but trust funds held for distribution are only general assets of the bank, then we find a serious difference in result following from a very slight, even formalistic, change in the relations of the parties. It would be no great stretch to term this a fund held “for investment,” particularly since the desire of the subscribers for some increment on their funds was made so clear. It was not to be fully paid in for a year and a half; it was to bear interest at a substantial rate; it was subject to various difficulties of adjustment, including income tax litigation and other litigation which remained unsettled on the bank’s failure more than four years after the first receipts were had.
Moreover, a broader interpretation should be given to the statute. We think that the provisions for security include in general the fiduciary funds which the- bank is required to keep segregated from its general assets. Such, indeed, is the view taken by the Board of Governors of the Federal Reserve System in their Regulation F promulgated under the power to issue regulations granted by this same statute. This regulation provides that when funds received and held in the trust department of a national bank “awaiting investment or distribution” are deposited in the commercial or savings department of the bank to the credit of the trust department, security for the deposit must be provided in the shape of United States bonds or other specified assets of the bank. Defendants assert in their brief that this regulation was not called to the attention of the court below, and .that therefore we cannot take judicial notice of it. It seems, however, that, while an appellate court is not obligated to notice matters not brought to the attention of the trial court, Line v. Line, 119 Md. 403, 86 A. 1032, Ann.Cas.1914D, 192, yet it may take such notice where- necessary either to affirm, or to show the impropriety of, a decision below. Hunter v. New York, O & W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L.R.A. 246. With respect to a regulation required by the statute for the carrying into effect of its terms, we should not hesitate to take judicial notice so far as is necessary. The point is not decisive here, since all we are saying is that the interpretation made by the Board of Governors of the Federal Reserve System accords with our own. It also accords with the conclusions reached in the other cases cited. Carcaba v. McNair, supra; Fesenmeyer v. Salt Springs Nat. Bank, supra; see also Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184.
3. We do not think the objection that the securities were provided for all the trust funds without definite segregation is sound, especially when asserted by the bank’s receiver. Regulation F above does not require segregation. Such a course, if required, would be a burdensome one, undoubtedly adding to the expense of carrying a trust account, particularly in the case of smaller trusts, We do not see how it adds very much to the security of the funds; it may indeed make each fund less secure by restricting the securities available to it in the event of the bank’s failure. Cf. Legis., 37 Col.L.Rev. 1384. At any rate we think the intent of the statute was complied with. This makes unnecessary consideration of the further question of tracing of the trust funds argued in the briefs.
Plaintiffs also argue that adjudication should be had as to securities totaling $20,000 on deposit with the Superintendent of Banks of the State of New York by the new bank for the benefit of its trust funds. While the problem as to such funds would seem identical with that before us, no issue was made as to them by the case below, and we do not pass upon the matter,
We think that the securities which the new bank had set aside for the purpose of protecting these funds were legally available for the intended purpose and should be so employed. The judgment is therefore reversed to provide for this re-sulk
This particular provision, has been held to he a prohibition against receiving deposits of third persons and not applicable to deposits' of funds held by the bank itself. Carcaba v. McNair, 5 Cir., 68 F.2d 795, certiorari denied 292 U.S. 646, 54 S.Ct. 780, 78 L.Ed. 1497; cf. Fesenmeyer v. Salt Springs Nat. Bank, 2 Cir., 92 F.2d 599; and see, also, Ticonic Nat. Bank v. Sprague, 1 Cir., 90 F.2d 641, affirmed 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926.
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_source
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
KEYES v. UNITED STATES.
No. 7743.
United States Court of Appeals for the District of Columbia.
Argued Jan. 9, 1941.
Decided March 10, 1941.
W. Gwynn Gardiner and James M. Earnest, both of Washington, D. C., for appellant.
Alexander H. Bell, Jr., of Washington, D. C., for appellees.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
GRONER, C. J.
This is an action begun by the Attorney General of the United States at the instance of the Alley Dwelling Authority to condemn certain real estate in the District of Columbia for the construction of dwellings for families and persons of low income. Appellant, the owner of two parcels within the area to be condemned, objected on a number of grounds. The trial court found her return to the rule insufficient as a matter of law, and granted the prayer of the petition, as a result of which appellant was required to surrender possession of her land. We allowed a special appeal.
In the argument here, appellant insists that her return contained meritorious defenses in the following respects: (1) The property cannot he condemned under the District of Columbia Alley Dwelling Act because it is neither in a square containing an inhabited alley nor necessary to provide accommodations for persons deprived of homes by the demolition of alley dwellings. (2) It cannot be condemned under any other housing laws because there is no showing either that it is unsanitary or unsafe or that the project includes the the demolition of a number of unsafe or unsanitary dwellings substantially equal to the dwellings to be constructed. (3) The legislative declaration on the un-healthfulness of alley dwellings upon which the validity of the law is said to depend, was based on a mistake or on facts which no longer exist. (4) The return contains denials which raise material issues of fact. (S) The Act is unconstitutional in that it authorizes the condemnation of private property for other than public uses.
We think there is no merit in these points.
In 1934 Congress enacted the “District of Columbia Alley Dwelling Act”, 48 Stat. 930, for the purpose of abolishing all alley dwellings in the District by July 1, 1944. The power to acquire property by condemnation under this Act was limited to squares containing inhabited alleys. By executive order, the President appointed the members of the “Authority” to carry out the Act. The United States Housing Act of 1937, 50 Stat. 888, 42 U.S.C.A. § 1401 et seq., provided for subsidies and loans to local housing agencies, and in 1938 Congress amended the local act, partly to bring it in line with the national plan. 52 Stat. 1186. Title I of the amended act included the original provisions in revised form and authorized the acquisition not only of property in squares containing inhabited alleys but also of other property necessary to provide accommodations' for persons deprived of homes by-the demolition of alley dwellings. Title II, added by the amendment, provided in § 202 that: “In addition to its other powers, the Authority shall have the power to acquire sites for and to prepare, carry out, acquire, lease, and operate housing projects, as defined in section 201 of this title, and to construct or provide for the construction, reconstruction, improvement, alteration, or repair of any such housing project, or any part thereof, in the District of Columbia.”
Section 201 referred to defined housing project to mean “any low-rent housing (as defined in the United States Housing Act of 1937), the development or administration of which is assisted by the United States Housing Authority”. Acting under this provision, the Authority addressed to the Attorney General a communication stating that it had received from the United States Housing Authority a loan of funds for the development of a low-rent housing project, that funds were available for the acquisition of the property required to be condemned, requesting the institution of proceedings to acquire by condemnation the property of appellant, ^ and stating “This acquisition is for the public use and purpose of effectuating the declared policy of Congress by providing dwellings for families and persons of low income in the District of Columbia”.
We are of opinion that the quoted paragraph from Title II of the Act vested in the Authority power to condemn sites for low cost housing projects in addition to and wholly independent of the provisions of Title I of the Act to provide facilities to persons whose alley dwellings have been demolished. This view is fortified by the language of Section 203, which provides that the local Authority shall be an agency to carry out the purposes of the national housing Act, and the provisions of the national housing Act declare the policy of the United States to be to promote the general welfare by employing government money to remedy the acute shortage of decent, safe, and sanitary dwellings for families of low income in rural or urban communities injurious to the health, safety, and morals of the Nation. In this view, appellant’s argument that Title I of the Act does not authorize the taking of her property, because the taking has no relation to the demolition of alley dwellings, is wholly beside the case. The resolution to take the land was specifically stated to be under Title II. The request to the Attorney General was likewise based on the provisions under that title, and the petition for condemnation declared and set out those provisions as the authority under which the proceeding was begun. And in Title II there is no requirement, as appellant contends, that the property to be acquired must itself be unsafe or unsanitary or that it can only be acquired in connection with a project which includes the demolition of unsafe or unsanitary dwellings. Of course, the two parts of the Act are related, and the elimination of slums, in the interest of public health and morals, is an important and vital part of the general plan. In fact, the Housing Act of 1937 requires the demolition of an equivalent number of unsafe or unsanitary dwellings as a condition to the grant of the subsidies under sections 10 and 11. This case, however, does not involve any of these subsidies. The acquisition of the property is to be made with the proceeds of a loan granted by the United States Housing Authority under section 9 of the Act, which imposes no such condition. The power to acquire property for housing projects in the District is not confined as contended. Cf. Housing Authority of Dallas v. Higgin-botham, 135 Tex. 158, 143 S.W.2d 79, 89, 90, 130 A.L.R. 1053; Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 23 N.E.2d 665, 668, 669; Chapman v. Huntington Housing Authority, W. Va., 3 S.E.2d 502, 513.
Appellant’s argument that she was entitled to show that alley dwellings are not, as declared, detrimental to public health and morals, comes too late in the history of this type of legislation, even if the point has, as we think it has not, any pertinence to a proceeding under Title II of the Distinct Act. But even if it were otherwise, appellant’s return sets forth only a conclusion that conditions with respect to the use of buildings in alleys as dwellings are not injurious to the public health, safety, morals, and public welfare. Something more is necessary to challenge the legislative declaration. The language of Justice Brandeis in Pacific States Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138, 101 A.L.R. 853, is pertinent: “When * * * legislative action ‘is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge, or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.’ Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 192, 79 L.Ed. 281. The burden is not sustained by making allegations which are merely the general conclusions of law or fact. * * * Facts relied upon to rebut the presumption of constitutionality must be specifically set forth. * * * A motion to dismiss, like a demurrer, admits only facts well pleaded.”
Appellant now contends that her answer raises material issues of fact on which she was denied the right to offer evidence. The argument is general and refers to no particular issue upon which evidence might be introduced or which might be determined in a manner to prevent the acquisition of her land. Upon examination of the record, we find that no substantial issue is raised. In the absence of more direct argument, we must assume that counsel does not seriously press the point.
Nothing more remains except to notice appellant’s objection that the Act is unconstitutional in that it authorizes condemnation of property for other than public uses. Appellant relies on United States v. Certain Lands in City of Louisville, 6 Cir., 78 F.2d 684, 687, certiorari granted, 296 U.S. 567, 56 S.Ct. 154, 80 L.Ed. 400, dismissed, 297 U.S. 726, 56 S.Ct. 594, 80 L.Ed. 1009. The Circuit Court of Appeals there held that the Federal Government had no power to condemn lands in Kentucky for the construction of low rent housing. The court said: “Decisions dealing with condemnation proceedings are to be considered in the light of the powers possessed by the sovereign seeking to exercise the right. What is a public use under one sovereign may not be a public use under another. * * * The State and federal governments are distinct sovereignties, each independent of the other and each restricted to its own sphere. * * * In the exercise of its police power a state may do those things which benefit the health, morals, and welfare of its people. The federal government has no such power within the states.”
If we shall assume that this opinion correctly states the law with relation to an attempt by the United States to condemn property for housing purposes in one of the states (cf. Oklahoma City v. Sanders, 10 Cir., 94 F.2d 323, 115 A.L.R. 363), it has no relevancy to a proceeding begun by the United States in the District of Columbia, for in that District Congress has plenary legislative power — all the power that a state has within the territory of the state, and more (cf. Neild v. District of Columbia, 71 App.D.C. 306, 110 F.2d 246) — and there can be no doubt that a state legislature may validly provide for low rent housing projects and authorize the condemnation of land for that purpose. Beginning with the leading case of New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153, 105 A.L.R. 905, the power under similar statutes has been sustained in a long line of decisions. Housing Authority of Los Angeles v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794; Marvin v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145; Williamson v. Housing Authority of Augusta, 186 Ga. 673, 199 S.E. 43; Krause v. Peoria Housing Authority, 370 Ill. 356, 19 N.E.2d 193; Edwards v. Housing Authority of Muncie, 215 Ind. 330, 19 N.E.2d 741; Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651; State v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725; Allydonn Realty Corp. v. Holyoke Housing Authority, Mass., supra; In re Brewster Street Housing Site in City of Detroit, 291 Mich. 313, 289 N.W. 493; Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656; Lennox v. Housing Authority of Omaha, 137 Neb. 582, 290 N.W. 451, 291 N.W. 100; Romano v. Housing Authority of Newark, 123 N.J.L. 428, 10 A.2d 181, affirmed, 124 N.J.L. 452, 12 A.2d 384; Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834; Knoxville Housing Authority v. Knoxville, 174 Tenn. 76, 123 S.W.2d 1085; Housing Authority of Dallas v. Higginbotham, Tex., supra.
On the whole case, we are of opinion that the action of the lower court was in all respects correct, and it is, therefore, affirmed.
Affirmed.
D.C. Code, Tit. 25:
‘TOO. Whenever ¡the head of any executive department or independent bureau, or other officer of the United States, or any board or commission of the United States, hereinafter referred to as the acquiring authority, has been, or hereafter shall be, authorized by law to acquire real property in the District of Columbia for the construction of any public building or work, or for parks, parkways, public playgrounds, or any other public purpose, such acquiring authority shall be, and hereby is, authorized to acquire the same in the name of the United States by condemnation under judicial process whenever in the opinion of such acquiring authority it is necessary or advantageous so to do; and in every such case the Attorney General of the United States, upon the request of such acquiring authority, shall cause a proceeding in rem for such condemnation to be instituted in the Supreme Court of the District of Columbia, holding a special term as a district court of the United States, which court, is hereby vested with jurisdiction of all such cases of condemnation with full power to hear and determine all issues of law and fact that may arise in the same.”
“109. The petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto—
“(3) A statement of the authority un-dor which and the public use for which said lands are taken.
“(2) A description of the lands taken sufficient for the identification thereof.
“(3) A statement of the estate or interest in said lands taken for said public use.
“(4) A plan showing the lands taken.
“(5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken.
“Upon the filing of said declaration of taking and of the deposit in the registry of the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just compensation awarded, interest at the rate of 6 per centum per annum on the amount finally awarded as the value of the property as of the date of taking, from said date to the date of payment; but interest shall not be allowed on so much thereof as shall have boon paid into the registry. No sum so paid into the registry shall be charged with commissions or poundage.
“Upon the application of the parties in interest, the court may order that the money deposited in. the registry of the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceeding. If the compensation finally awarded in’ respect of said lands or any parcel thereof shall exceed the amount of the money so received by any person entitled, the court shall enter judgment against the United States for the amount of the deficiency.
“Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable.”
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_typeiss
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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 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.
Richard M. NIXON, Individually and as the former President of the United States, et al. v. Arthur F. SAMPSON, Individually and as Administrator of General Services, et al. Appeal of REPORTERS COMMITTEE FOR FREEDOM OF the PRESS et al. (two cases). The REPORTERS COMMITTEE FOR FREEDOM OF the PRESS et al., Appellants, v. Arthur F. SAMPSON, Individually and as Administrator of General Services. Lillian HELLMAN et al. v. Arthur F. SAMPSON, Individually and as Administrator of General Services, et al.
Nos. 75-2194—75-2196.
United States Court of Appeals, District of Columbia Circuit.
Argued May 10, 1977.
Decided March 22, 1978.
Mark J. Spooner, Washington, D. C., with whom Robert E. Herzstein, Andrew S. Krulwich, Simon Lazarus, III and Leonard B. Simon, Washington, D. C., were on brief, for appellants.
Charles S. Rhyne, Washington, D. C., with whom William S. Rhyne and Richard J. Bacigalupo, Washington, D. C., were on brief, for appellee, Woods.
Rex E. Lee, Asst. Atty. Gen., Irwin Gold-bloom, Deputy Asst. Atty. Gen. and David J. Anderson, Atty., Dept, of Justice, Washington, D. C., were on brief, for appellees, The Administrator of Gen. Services and the Counsel to the President.
Before BAZELON, Chief Judge, LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by BAZELON, Chief Judge.
BAZELON, Chief Judge:
Section 101(b)(1) of the Presidential Recordings and Materials Preservation Act (the Act), Pub.L. 93-526 (1974), 88 Stat. 1695, 44 U.S.C. § 2107 (Supp. V 1975), directs the Administrator of General Services (the Administrator) to take custody of all “papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon.” Appellee, Rose Mary Woods, sought to remove from the Administrator’s custody approximately fifty cartons of material that she claimed was her personal property. Appellants, Reporters Committee for Freedom of the Press, et al., (Reporters Committee), sought to prevent the removal of this material until regulations implementing the Act had been promulgated by the Administrator and accepted by Congress. On December 16, 1977, while this case was under consideration, these regulations became effective. 42 Fed.Reg. 63626 (1977).
I
The background of this litigation is extraordinarily complex. Soon after leaving office Mr. Nixon entered into an agreement with the Administrator of General Services, Arthur F. Sampson, concerning the disposition of the former’s “Presidential historical materials.” Mr. Nixon later brought suit in district court to enforce the implementation of this agreement. Mr. Sampson was a named defendant. Shortly thereafter two groups of plaintiffs, of which Reporters Committee was one, brought suit seeking to have these materials declared the property of the United States government, to enjoin their transfer to Mr. Nixon, and to gain access to them under the Freedom of Information Act. In one action Mr. Nixon was a named defendant, in another he was permitted to intervene. These two actions were ultimately consolidated with the suit brought by Mr. Nixon; the Watergate Special Prosecutor and Jack Anderson, a newspaper columnist, were both permitted to intervene in Mr. Nixon’s suit, the former as a defendant and the latter as a plaintiff. See Nixon v. Administrator of General Services, 408 F.Supp. 321, 331-32 (D.D.C. 1976); Nixon v. Sampson, 389 F.Supp. 107 (D.D.C.1975). These actions came collectively to be known as the “consolidated cases.”
On December 20, 1974, the day after the Act was signed into law, Mr. Nixon brought suit challenging its constitutionality. We stayed all action in the consolidated cases until the Act’s constitutionality could be determined. Nixon v. Richey, 168 U.S.App. D.C. 172, 513 F.2d 430 (1975). However, on August 7, 1975, appellee Rose Mary Woods sought leave to intervene in the consolidated cases in order to recover what she claimed were her personal papers. On September 2, we granted leave to intervene and modified our stay “to enable the District Court, in its discretion, to enter an order ... to authorize the return of the materials sought, nothing herein contained being intended to intimate any view as to the disposition by the District Court of any applications which may be made to it.” Joint Appendix (J.A.) at 35.
Ms. Woods subsequently intervened in the consolidated cases. She claimed that Ms. Mary M. Filippini, Administrative Assistant for the Office of Presidential Materials at the General Services Administration and prior to that a staff member of the Office of Presidential Libraries at the National Archives and Records Service, had examined certain materials and prepared a “List F” containing items that were “solely the personal materials and papers” of Ms. Woods. Ms. Woods sought to recover the approximately fifty cartons of material enumerated in List F. She appended an affidavit of Ms. Filippini in which the archivist stated that she had personally inspected and compiled List F, and that:
Basing my judgment on the same criteria used in collecting Nixon Presidential Materials from other White House staff members and staff offices prior to and since August 9, 1974, I find none of the items described on “List F” . . . to be “Presidential historical materials of Richard M. Nixon.”
J.A. at 89. Ms. Filippini appended to her affidavit an “Exhibit I” containing the “criteria” she had used in compiling List F. This Exhibit I was a White House memorandum of August 9, 1974, stating that:
Personal files include correspondence unrelated to any official duties performed by the staff member; personal books, pamphlets and periodicals; daily appointment books or log books; folders of newspapers or magazine clippings; and copies of records of a personnel nature relating to a person’s employment or service.
J.A. at 91. “Personal files” were those not considered to be historical materials.
Defendant Sampson answered Woods’ complaint and stated that he did not oppose her requested relief. No opposition was voiced by the Special Prosecutor or by any other defendant. Reporters Committee, however, a plaintiff in the case below, filed a “Protective Answer” opposing Woods’ complaint and denying that the materials sought were her personal property. J.A. at 116-18.
On November 19, Ms. Woods filed a motion for judgment on the pleadings stating that the contents of the Filippini affidavit were admitted by defendant Sampson “and remain uncontroverted.” J.A. at 125 — 26. Despite the opposition of Reporters Committee, the district court granted Ms. Woods’ motion on December 2, 1975. It noted specifically that “Defendants do not oppose the relief sought by Plaintiff-Intervenor.” J.A. at 149.
Reporters Committee appealed. Defendant Sampson has filed a brief in this court arguing that the district court’s decision she” Id be upheld.
On March 25, 1976, before oral argument was held on appeal, this court ordered the parties to begin negotiations so as “to stipulate those materials as to which no controversy exists.” We took this step because it appeared “that at least a substantial number of the materials enumerated in List F are so plainly the personal and private property of appellee Woods and so lacking in historical or commemorative value or significance as to preclude any colorable claim that they fall within the reach of Section 101 of the Presidential Recordings and Materials Preservation Act. . . . ”
By the time of oral argument well over half of the materials on List F had been released to Ms. Woods because the parties had stipulated that they were so plainly lacking in historical significance as to preclude any colorable claim that they fell within the reach of Section 101 of the Act.
II
Section 104(a) of the Materials Preservation Act, supra note 1, directs the Administrator to “submit to each House of the Congress a report proposing and explaining regulations that would provide public access” to the Presidential historical materials controlled by the Act. These regulations, however, were not in effect when Rose Mary Woods intervened in the consolidated cases to obtain the return of what she claimed were her personal papers. The ruling of the district court was thus that the affidavit of Ms. Filippini was sufficient, in the absence of such regulations, to establish that the materials sought by Ms. Woods were not within the purview of the Act. The regulations subsequently promulgated, however, set forth standards defining more fully the nature of the materials controlled by the Act and created an elaborate procedural system for the evaluation and transfer of materials according to these standards. 42 Fed.Reg. 63626 (1977). We need not reach the question whether the establishment of this procedural system, by itself, constitutes sufficient grounds now to dismiss Ms. Woods’ suit, see Bradley v. School Board of City of Richmond, 416 U.S. 696, 720, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Nixon v. Administrator of General Services, 433 U.S. 425, 459 n. 22, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), since we hold that the criteria used by Ms. Filippini in compiling List F were not in accordance with the standards required by the Act.
We view the essential question in this case to be the meaning of the “Presidential historical materials” over which Section 101(b)(1) of the Act directs the Administrator of General Services to acquire custody. Section 101(b)(2) states that, “[f]or purposes of this subsection, the term ‘historical materials’ has the meaning given it by section 2101 of Title 44, United States Code.” Appellee argues that § 101(b)(2) thus “adopts the standard of the archival art current at the time of the Act (December 19, 1974) without reference to regulations.” Brief for appellee at 21. Since appellee claims that Ms. Filippini used this standard in compiling List F, she urges that the district court’s judgment be affirmed.
Section 2101 of Title 44 of the United States Code, however, defines historical materials to include “books, correspondence, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects or materials having historical or commemorative value.” While this definition details with some particularity the meaning of the term “materials,” it provides little if any assistance in deciding which of these materials are of historical value. The deliberate vagueness of the section suggests that Congress intended this decision to be made in the context of surrounding circumstances, and specifically with reference to the purposes of the Materials Preservation Act. This conclusion is supported by the legislative history of the Act, which also indicates that Congress intended the Administrator’s regulations to develop guidelines, based in part on the experiences of Watergate, to determine which materials would be controlled by the Act.
The criteria Ms. Filippini used to compile List F, however, were developed before the passage of the Act and before the promulgation of the Administrator’s regulations. Exhibit I, which Ms. Filippini states sets forth the criteria she used in gathering List F, is dated August 9, 1974; indeed, Ms. Filippini is quite frank in stating that her judgment was based “on the same criteria used in collecting Nixon Presidential Materials from other White House staff members and staff offices prior to and since August 9, 1974.” J.A. at 89. We find that these criteria are not consonant with the purposes of the Materials Preservation Act. For example, § 104(a)(1) of the Act speaks of “the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term Watergate . . ..” See Nixon v. Administrator of General Services, 433 U.S. 425, 452-53, 97 S.Ct. 2777, 2795, 53 L.Ed.2d 867 (1977). Many of the abuses of power involved in Watergate were “unrelated to any official duties,” yet under the criteria of Exhibit I it appears that reference to such activities in correspondence would be labeled “personal” and found to be not Presidential historical materials. Similarly, the criteria employed by Ms. Filippini would apparently categorize as personal and not Presidential historical materials the “daily appointment books or log books” that constituted such important evidence in the Watergate affair. Moreover § 104(a)(6) of the Act speaks of “the need to provide public access to those materials which have general historical significance.” The criteria of Exhibit I do not articulate this concern.
Our conclusion that the criteria of Exhibit I are not compatible with the purposes of the Act is supported by the regulations promulgated by the Administrator. Under these regulations the Administrator will specifically retain control over materials related to abuses of governmental power popularly identified under the generic term “Watergate.” See 42 Fed.Reg. 63628 (1977) (to be codified in 41 C.F.R. § 105-63.-401-5). The regulations also have a more inclusive definition of “Presidential historical materials” than that expressed in Exhibit I:
(a) Presidential historical materials. The term “Presidential historical materials” (also referred to as “historical materials” and “materials”) shall mean all papers, correspondence, documents, pamphlets, books, photographs, films, motion pictures, sound and video recordings, machine-readable media, plats, maps, models, pictures, works of art, and other objects or materials made or received by former President Richard M. Nixon or by members of his staff in connection with his constitutional or statutory duties or political activities as President and retained or appropriated for retention as evidence of or information about these duties and activities. Excluded from this definition are documentary materials of any type that are determined to be the official records of an agency of the Government; private or personal materials; stocks of publications, processed documents, and stationery; and extra copies of documents produced only for convenience of reference, when they are clearly so identified.
(b) Private or personal materials. The term “private or personal materials” shall mean those papers and other documentary or commemorative materials in any physical form relating solely to a person’s family or other nonpublic activities, and having no connection with his constitutional or statutory duties or political activities as President or as a member of the President’s staff.
42 Fed.Reg. 63626 (1977) (to be codified in 41 C.F.R. § 105-63.104(a), (b)). Whereas the criteria of Exhibit I would require that that “correspondence unrelated to any official duties” be returned to Ms. Woods, the regulations would classify as “private or personal materials” only those “having no connection with . . . constitutional or statutory duties or political activities . .” The “daily appointment books or log books” that the criteria of Exhibit I would categorize as personal would, under the regulations, be considered at least prima facie Presidential historical materials, since they constitute “evidence of or information about” such constitutional or statutory duties or political activities.
The criteria used in compiling List F thus not having been in accordance with statutory standards, the district court was incorrect in granting judgment on the pleadings. Since an elaborate regulatory scheme has now been established by the Administrator, the most appropriate disposition of this case is to dismiss appellee’s suit without prejudice, and to remand her to her administrative remedies. Should those remedies prove unavailing, she will be able at that time to seek judicial review under § 105(a) of the Act. Since appellee will not be harmed by dismissal, there is no reason for the district court to retain jurisdiction. See United States v. Michigan National Corp., 419 U.S. 1, 5, 95 S.Ct. 10, 42 L.Ed.2d 1 (1974).
The judgment of the district court is therefore reversed and the case is dismissed without prejudice.
So ordered.
. Section 104 of the Act provides that:
(а) The Administrator shall, within ninety days after the date of enactment of this title, submit to each House of the Congress a report proposing and explaining regulations that would provide public access to the tape recordings and other materials referred to in section 101. Such regulations shall take into account the following factors:
(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of government power popularly identified under the generic term “Watergate”;
(2) the need to make such recordings and materials available for use in judicial proceedings;
(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings, to information relating to the Nation’s security;
(4) the need to protect every individual’s right to a fair and impartial trial;
(5) the need to protect any party’s opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials;
(б) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and
(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance.
(b)(1) The regulations proposed by the Administrator in the report required by subsection (a) shall take effect upon expiration of ninety legislative days after the submission of such report, unless such regulations are disapproved by a resolution adopted by either House of the Congress during such period.
. This court was not informed of the effective promulgation of the regulations until February 24, 1978. The two-month delay unfortunately placed an additional burden on our deliberations and represented a level of responsibility less than we have a right to expect. See ABA Code of Professional Responsibility EC 7-23 (1976).
. The agreement is reproduced in Nixon v. Sampson, 389 F.Supp. 107, 160-62 (D.D.C. 1975) (Appendix A).
. Complaint ¶ 11; J.A. at 38.
. In his brief, Sampson argues that “any undue delay after Miss Woods’ demand was made might well subject the United States to a claim for just compensation if its retention of those materials resulted in depriving her of personal property. By disputing the government and Miss Woods and delaying the ultimate resolution of this matter, appellants have substantially increased the exposure of the United States to such a recovery. In order to protect against this eventuality, the government intends to make a request for security from the appellants in the district court if this court takes any action other than an outright affirmance.” Br. at 7-8.
Compensation for the deprivation of personal property is authorized by § 105(c) of the Act:
If a final decision of such court holds that any provision of this title has deprived an individual of private property without just compensation, then there shall be paid out of the general fund of the Treasury of the United States such amount or amounts as may be adjudged just by that court.
. At oral argument counsel for appellants described these materials as consisting chiefly of “stenographic pads, ballpoint pens, books, and the like.” As for these materials, no present controversy exists, and they are no longer part of this case.
The materials that remain in controversy include files labelled: “Tapes — Gap Problems of Others”; “Butterfield, Alex (re: tapes)”; “Buzhardt Testimony (questions)”; “Logs”; “Re-bozo, C.G.”; “Tapes — Access (TSD handling of)”; “Mitchell”; “Safe Access Long — Oct. 4-7, 1973, Key Biscayne”; “Stans, Maurice”; “Panel (Tape Gap).”
. This is a question of statutory construction. We are not persuaded by appellee’s argument that our decision is controlled by “the doctrine of Law of the Case.” Brief for appellee at 22. Our September 2 order specifically declined to express or “intimate any view as to the disposition by the District Court of any applications which may be made to it.” Nor are we persuaded by appellee’s argument that judgment was appropriate in the proceeding below because no “defendant” objected to the release of the materials. Although the district court mentioned this fact in its order, J.A. at 149, the realistic alignment of the parties must be considered. Reporters Committee was formally a plaintiff in the consolidated cases, as was Woods, but it was in fact the party in an adversary relation with Woods in this matter.
. Section 104(a) of the Act requires the Administrator, in formulating regulations, to take into account several factors, including the need to inform the public about Watergate (§ 104(a)(1)), the need to provide public access to materials of “general historical significance” (§ 104(a)(6)), and “the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in [§ 104(a)(1)] and are not otherwise of general historical significance.” § 104(a)(7). See Nixon v. Richey, 168 U.S.App.D.C. 172, 186, 513 F.2d 430, 444 (1975). Senator Nelson, a sponsor of S. 4016, which would eventually become the Materials Preservation Act, stated that, since it would be “difficult within a short time to draft regulations governing public access” which would accommodate these competing interests, the Administrator’s regulations, together with their accompanying report, would “recommend which materials of historical significance should be retained.” 120 Cong. Rec. 33851 (1974). Senator Ervin, another of the Bill’s sponsors, stated that in drafting these regulations the Administrator should call upon the advice of the Special Prosecutor’s office. Id. at 33856. When Congressman Brademas, one of the primary supporters of S. 4016 in the House, was asked why the Administrator, who had entered into the original argument with Mr. Nixon, see note 3 supra, should now be trusted to draft such important regulations, the Congressman replied:
It is precisely because of the apprehension of the members of the committee with respect to that particular point that the bill contains language which directs the Administrator to submit to Congress, within 90 days after the enactment of the measure, regulations which would provide public access to the materials.
Secondly, it is precisely because we shared that apprehension that those regulations would not go into effect without an opportunity for both the House and Senate to review the regulations and to exercise a veto if we disapprove of them.
Id. at 37903.
. The Act was passed by Congress on December 10, 1974, and was signed into law on December 19. The Administrator’s regulations became effective on December 16, 1977.
. The regulations define the term “abuses of governmental power popularly identified under the generic term ‘Watergate’ ” to mean:
those alleged acts, whether or not corroborated by judicial, administrative or legislative proceedings, which allegedly were conducted, directed, or approved by Richard M. Nixon, his staff or persons associated with him in his constitutional, statutory or political functions as President, and (1) are or were within the purview of the charters of the Senate Select Committee on Presidential Campaign Activities or the Watergate Special Prosecutor Force; or (2) are circumscribed in the Articles of Impeachment adopted by the House Committee on the Judiciary and reported to the House of Representatives for consideration in House Report No. 93-1305.
42 Fed.Reg. 63626 (to be codified in 41 C.F.R. § 105-63.104(c)).
. Section 105(a) states:
The United States District Court for the District of Columbia shall have exclusive jurisdiction to hear challenges to the legal or constitutional validity of this title or of any regulation issued under the authority granted by this title, and any action or proceedings involving the question of title, ownership, custody, possession, or control of any tape recording or material referred to in section 101 or involving payment of any just compensation which may be due in connection therewith. Any such challenge shall be treated by the court as a matter requiring immediate consideration and resolution, and such challenge shall have priority on the docket of such court over other cases.
Appellee argues that § 105(a) provides an independent “jurisdictional basis” for the district court to determine, apart from the Administrator’s regulations, if “the papers here involved are the personal property of Ms. Woods and not Presidential historical materials.” Brief for appellees at 8, 28-30.
Whether or not § 105(a) confers such jurisdiction, we hold that the district court should defer in the first instance to the Administrator’s' regulatory scheme. The Supreme Court has emphasized “the Act’s requirement that the Administrator of General Services administer the . . . materials placed in his custody only under regulations promulgated by him providing for the orderly processing of such materials for the purpose of returning to [Mr. Nixon] such of them, as are personal and private in nature . . ..” Nixon v. Administrator of General Services, 433 U.S. 425, 436, 97 S.Ct. 2777, 2786, 53 L.Ed.2d 867 (1977). If § 105(a) were interpreted as authority for district courts to determine ad hoc whether particular items were “Presidential historical materials,” it would constitute a virtual invitation to bypass the “orderly processing” of such items “under regulations promulgated by” the Administrator. We decline to interpret § 105(a) in a manner so contrary to the central import of the Act.
Although appellee has informed us by way of a motion for summary affirmance that the Administrator’s regulations are presently under constitutional attack, see Nixon v. Soloman, C.A. No. 77-1395 (D.D.C.), we see no reason to alter our judgment. Even if the pending lawsuit were to delay the effective operation of the regulations, Ms. Woods has demonstrated no irreparable injury that will occur if she is required to wait, like the rest of the White House staff, until the regulations are fully operational. Indeed, over half the materials she seeks have already been returned to her. Particularly with respect to those materials that the parties have been unable to stipulate are “so lacking in historical or commemorative value or significance as to preclude any colorable claim that they fall within the reach of Section 101,” the purposes of the Act will be best served if we defer to the authoritative definitions and procedures of the Administrator.
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_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, Appellee, v. Clarence SMITH, a/k/a "Texas Shorty,” Appellant.
No. 74-1353.
United States Court of Appeals, Tenth Circuit.
Aug. 22, 1975.
Mark L. Bennett, Jr., Topeka, Kan., for appellant.
Mary K. Briscoe, Asst. U. S. Atty. (E. Edward Johnson, U. S. Atty., and Bruce E. Miller, Asst. U. S. Atty., with her on the brief), for appellee.
Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
SETH, Circuit Judge.
The defendant, Clarence Smith, was indicted and tried for the first degree murder of a fellow inmate in the federal penitentiary at Leavenworth, Kansas. The jury returned a verdict of guilty of voluntary manslaughter, and defendant appeals.
Appellant’s first argument is that the trial court abused its discretion in allowing evidence of his prior convictions to be admitted. Prior to the start of the trial, the trial court heard appellant’s motion for a protective order to prevent the Government from cross-examining him about his prior criminal record. This record included convictions of armed robbery, burglary, and forgery, the latter being the record for his incarceration at Leavenworth. The motion was directed to the convictions of- robbery and burglary on the theory they did not pertain to credibility and therefore are beyond the permissible scope of cross-examination for impeachment purposes. The motion was denied, and appellant revealed each of his prior convictions on direct examination.
In United States v. Williams, 445 F.2d 421 (10th Cir.), coappellant Johnson had been advised the Government would be allowed to cross-examine him about his prior conviction of assault with intent to kill. This was before he took the stand in his trial for stealing television sets from an interstate shipment, and he then revealed the prior conviction on direct examination. This court there said:
“ . . . There appears to be a trend in legal thinking away from the traditional right of unlimited cross examination of defendants as to prior convictions when they testify in their own defense.
“This court, however, has continuously followed the time honored rule that when .a defendant in a criminal case takes the stand in his own defense, his credibility may be impeached and his testimony attacked in the same manner as any other witness, including reference to prior convictions. United States v. Perea, 413 F.2d 65 (10th Cir. 1969), cert. denied, 397 U.S. 945, 90 S.Ct. 960, 25 L.Ed.2d 125 (1970); Butler v. United States, 408 F.2d 1103 (10th Cir. 1969); Martin v. United States, 404 F.2d 640 (10th Cir. 1968); Burrows v. United States, 371 F.2d 434 (10th Cir. 1967). To minimize undue prejudice, we have recognized that the trial court has discretion in limiting cross examination of an accused on the subject of prior convictions. United States v. Bartello, 432 F.2d 1030 (10th Cir. 1970); United States v. Perea, supra; Butler v. United States, supra; Burroughs v. United States, supra; Maguire v. United States, 358 F.2d 442 (10th Cir. 1966). We find no abuse of discretion.”
Appellant relies on Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, for the proposition that in exercising its discretionary power, the trial court must hold a hearing to determine whether the prejudice resulting from the use of prior convictions outweighs their probative value. A pretrial hearing was held on the motion in the case before us, and appellant’s argument therefore appears to challenge the adequacy of that hearing. We do not read Luck or any other case as requiring a hearing as to the admissibility of prior convictions for impeachment purposes. Luck involved the District of Columbia’s statutory prior conviction rule and while it is obviously distinguishable in that it involved a statutory prior conviction rule, none of its reasoning requires a hearing in the exercise of the court’s discretionary power.
The hearing in the case before us was occasioned by appellant’s pretrial motion for a protective order, and we find no abuse of discretion in its denial. The indictment charged murder within a penitentiary. The defendant, the victim, and the eye witness were all inmates incarcerated on prior convictions. It was of practical necessity, therefore, that on voir dire of the jury panel and before the motion hearing, defendant’s counsel examined the panel with regard to defendant’s obvious status as a convict. During the trial, defendant freely cross-examined the Government’s eye witness about his prior convictions. After defendant took the stand, he called the prison records officer for the purpose of showing the victim’s convictions. He then called seven inmates, some of whom testified about violence in general at the penitentiary, most of whom testified about the violent reputation of the victim, and all of whom were questioned on direct or cross-examination about their own convictions. Viewing this record as a whole, we cannot see that the trial court abused its discretion or the defendant was unduly prejudiced by either denial of the pretrial motion or subsequent introduction of his prior convictions.
Appellant’s second argument is the trial court erred in giving an additional “Allen” type instruction to the jury after they had deliberated only three hours. The jury had so deliberated when released overnight, and was given the challenged instruction upon returning the following morning. Defendant immediately objected on the ground of coercion and prejudice, especially in light of the length of the trial, the volume of evidence received, the possibility of four different verdicts, and the fact that the last indication made by the jury was they were making progress. The instruction here concerned is basically the same as considered by this court in Munroe v. United States, 424 F.2d 243 (10th Cir.). Munroe is dispositive of appellant’s contention as to the Allen type instructions given during the deliberation of the jury, and before any deadlock was indicated. We are of the view that “Allen” instructions are not per se coercive, and each case is reviewed individually to determine whether the taint of coercion was present. See United States v. Wynn, 415 F.2d 135 (10th Cir.); Munroe v. United States, 424 F.2d 243 (10th Cir.); Goff v. United States, 446 F.2d 623 (10th Cir.); United States v. Cowley, 452 F.2d 243 (10th Cir.); United States v. Abbadessa, 470 F.2d 1333 (10th Cir.).
Appellant’s third argument concerns the trial court’s refusal to instruct on the lesser included offense of involuntary manslaughter. The theory of appellant’s case was self-defense, and the trial court properly instructed the jury that such a defense is a complete defense. The crime of involuntary manslaughter is inconsistent with the theory of self-defense.
Appellant’s fourth argument concerns denial of his motion for new trial on the ground that he was under the influence of drugs during trial and therefore incapable of assisting in his own defense.
It was while the jury was deliberating that appellant first advised his counsel he had been under the influence of drugs throughout the trial. An evidentiary hearing on his motion revealed appellant had requested and received a prescription of ten milligrams of Valium to be given three times per day. Medical testimony showed Valium to be a mild tranquilizer having possible but unlikely effects upon an individual’s mental capacities. Appellant testified that during his trial he would save his evening dosage and take it with the morning dosage, with the result that he would be “drowsy” and things would “pass right on by >1
The test of competency to stand trial is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824; Arnold v. United States, 432 F.2d 871 (10th Cir.). This test raises issues of fact as to which the defendant has the burden of proof. Johnston v. United States, 292 F.2d 51 (10th Cir.). Ignoring the self-administered aspect of the matter, the record does not show, and we have no reason to believe, that appellant’s use of Valium per se rendered him incompetent to stand trial. United States v. Tom, 340 F.2d 127 (2d Cir.). On the other hand, the record does show that appellant appeared to both the trial court and his own counsel to understand the proceedings and communicate rationally with counsel. We conclude there is adequate evidentiary support for the trial court’s conclusion that appellant failed to sustain his burden of proving his incompetency.
Appellant’s final argument is that he was denied trial by a jury of his peers. Before voir dire commenced, appellant, a Black, objected to the fact there were no Blacks on the jury panel. In making the objection he conceded he knew of nothing unlawful in the selection of the panel. His argument is that the result speaks for itself and constitutes a prima facie case of purposeful discrimination.
We find no case in which such a broad and unspecified objection has been held to constitute a prima facie case. As we recently stated in Leggroan v. Smith, 498 F.2d 168 (10th Cir.), a claim of discriminatory selection of jurors “necessarily requires a showing that a recognizable, identifiable class of persons, otherwise entitled to be jury members, has been purposefully and systematically excluded from jury service.” While the actual result of exclusion may by inference contribute to a showing of such system or purpose, result alone is insufficient to establish a prima facie case shifting the burden of proof to the Government. Appellant’s argument that the summary overruling of his objection prevented him from developing facts which would support his claim of discriminatory selection is equally without merit. Not only is the argument an admission that at the time he knew of no such facts, but also it ignores the statutory procedure available for challenging the selection process, 28 U.S.C. § 1867.
Affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
PRECISE IMPORTS CORPORATION, Mitchell Mogal, Inc., and Topline Industries Corporation, Plaintiffs-Appellants, v. Joseph P. KELLY, Collector of Customs of the Port of New York, Irving Fishman, Deputy Collector of Customs, and United States of America, Defendants-Appellees.
No. 348, Docket 30777.
United States Court of Appeals Second Circuit.
Argued March 7, 1967.
Decided June 15, 1967.
A. Bernard King, New York City (Murray Rosof, New York City, on the brief), for plaintiffs-appellants.
David E. Montgomery, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, and Lawrence W. Schilling and Robert E. Kushner, Asst. U. S. Attys., New York City, on the brief), for defendants-appellees.
Before LUMBARD, Chief Judge, and WATERMAN and SMITH, Circuit Judges.
LUMBARD, Chief Judge.
Plaintiffs brought this action in the Southern District of New York for a declaratory judgment that seven shipments of knives which they imported in early 1962 “and knives similar thereto” were not barred from entry into the United States by the Switchblade Knife Act, 72 Stat. 562 (1958), 15 U.S.C. §§ 1241-44. The knives, except for a few samples, were released to plaintiffs before customs inspection on entry bonds, and were then ordered by the individual defendants, the Collector and Deputy Collector of Customs of the Port of New York, to be redelivered on the ground that they violated the Switchblade Knife Act. Plaintiffs appeal from the dismissal of their complaint after a trial before Judge Croake and á jury, upon the jury’s verdict that three knives from the shipments retained as samples by Customs and offered in evidence by the defendants were switchblade knives within the meaning of the act. They also appeal from a judgment for the United States, which was added as a defendant on its own motion, on its counterclaim for liquidated damages under the entry bonds for failure to redeliver the knives, in the amounts of $7,468.80 against plaintiff Precise Imports Corporation, $10,000 against plaintiff Mitchell Mogal, Inc., and $3,810.98 against plaintiff Topline Industries Corporation, plus interest. By stipulation of the parties, this counterclaim was tried before Judge Croake without a jury.
Before filing their answer, defendants moved to dismiss the complaint on the ground that 28 U.S.C. § 1588 vests exclusive jurisdiction to review “decisions of any collector of customs * * * excluding any merchandise from entry or delivery, under any provision of the customs laws” in the Customs Court. The motion was denied by Judge Feinberg, 218 F.Supp. 494 (S.D.N.Y. 1963), and defendants have not renewed this contention upon appeal. This court must nevertheless determine whether it has jurisdiction of this case. E. g., Mansfield, C. & L. M. Ry. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Shahmoon Indus., Inc. v. Imperato, 338 F.2d 449 (3 Cir. 1964). We agree with Judge Feinberg that we do have jurisdiction, because the Switchblade Knife Act, which prohibits transportation and distribution of switchblade knives in interstate commerce and their knowing introduction into interstate commerce, 72 Stat. 562 (1958), 15 U.S.C. § 1242, is a criminal statute of general application, not a “provision of the customs laws.” Cf. Croton Watch Co., Inc. v. Laughlin, 208 F.2d 93 (2 Cir. 1953). Compare Patchogue-Plymouth Mills Corp. v. Durning, 101 F.2d 41 (2 Cir. 1939). We therefore proceed to the merits of plaintiffs’ appeal.
The Switchblade Knife Act defines a switchblade knife as “any knife having a blade which opens automatically — (1) by hand pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both.” 72 Stat. 562 (1958), 15 U.S.C. § 1241(b). At the jury trial of their action for a declaratory judgment and an injunction, plaintiffs read into the record a one-sentence pretrial stipulation of the parties that “the knives involved in this action do not open automatically by button, inertia, gravity, or any combination of the foregoing upon arrival at the Port of New York,” and rested. The trial court denied defendants’ motion for a directed verdict, and held that defendants had the burden of proving that the knives in issue violated the act.
Defendants then called Joseph Lamb, Assistant Deputy Commissioner for Technical Services in the Bureau of Customs, who testified that he had modified each of three sample knives from plaintiffs’ shipments by filing down a rough corner on the heel of the blade and weakening the restraining spring slightly with an icepick, and demonstrated to the jury that the knives as modified opened with a flick of the wrist. Mr. Lamb stated that he had no special training in working with knives, and had worked from five to nine and one-half minutes on each knife. Defendants also called Louis A. Pinkussohn, an executive with an American manufacturer of knives, who expressed the opinion that the knives in evidence, which had stiletto blades from four and one-half to six and one-half inches long, were designed for use as daggers because their blades were sharp only at the point.
Judge Croake charged the jury, over plaintiffs’ objection, that it must find that the knives violated the Switchblade Knife Act, despite the stipulation that they did not open automatically upon entry, if it found that they could be made to open automatically by insignificant alterations and that one of the primary utilitarian purposes of their design and construction was for use as weapons. He also charged that in determining whether any alterations needed to make the knives open automatically were insignificant, the jury might consider the extent of the alterations, the time they took, and whether they required any special training or equipment or impaired the general usefulness of the knives. Finally, Judge Croake told the jury that in deciding whether use as weapons was one of the primary purposes of the knives’ design, it might consider whether their design suited them primarily for use as weapons, whether they had any use other than as weapons which could not be served as well or better by other forms of knives, whether any characteristics of the knives which increased their suitability as weapons were not required for any other use, and whether any characteristics which made it possible to make the knives open automatically somehow set them apart from other pocket knives not involved in this case. The jury returned a verdict that the knives in evidence were switchblade knives.
We approve Judge Croake’s charge, except for the suggestion that the jury consider whether any characteristics which made it possible to alter the knives in evidence to open automatically somehow distinguished them from other pocket knives, the relevance of which is not apparent to us. The report of the Senate Committee on Interstate and Foreign Commerce which recommended passage of the Switchblade Knife Act stated that the enforcement of state laws banning switchblade knives would be extremely difficult as long as such knives could be freely obtained in interstate commerce, and added:
“In supporting enactment of this measure, however, your committee considers that the purpose to be achieved goes beyond merely aiding States in local law enforcement. The switchblade knife is, by design and use, almost exclusively the weapon of the thug and the delinquent. Such knives are not particularly adapted to the requirements of the hunter or fisherman, and sportsmen generally do not employ them. It was testified that, practically speaking, there is no legitimate use for the switchblade to which a conventional sheath or jackknife is not better suited. This being the case, your committee believes that it is in the national interest that these articles be banned from interstate commerce.” S.Rep. No. 1980, 85th Cong., 2d Sess., reprinted in 2 U.S. Code Cong. & Ad. News 1958, at 3435-37.
The congressional purpose of aiding the enforcement of state laws against switchblade knives and of barring them from interstate commerce could be easily frustrated if knives which can be quickly and easily made into switchblade knives, and one of whose primary uses is as weapons, could be freely shipped in interstate commerce and converted into switchblade knives upon arrival at the state of destination. We decline to construe the act as permitting such facile evasion.
We recognize that penal statutes are to be strictly construed, so as to give fair warning of the acts they prohibit. E. g., MeBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1931). However, the canon of strict construction does not require that a penal statute be emasculated in disregard of the clear intent of the legislature in enacting it. See, e. g., United States v. Hood, 343 U.S. 148, 72 S.Ct. 568, 96 L.Ed. 846 (1952); United States v. Giles, 300 U.S. 41, 57 S.Ct. 340, 81 L.Ed. 493 (1937). This is especially true where the statute, although criminal, is first construed in a civil action. Cf., e. g., Johnson v. Southern Pac. Co., 196 U.S. 1, 17-18, 25 S.Ct. 158, 49 L.Ed. 363 (1904). Moreover, the requirement in the charge we have approved that the jury must find that one of the primary purposes of a knife is for use as-a weapon not only gives effect to the congressional intent to bar from interstate commerce knives which are well adapted only to use as weapons, but also ensures that the nature of a knife which is found under this standard to violate the act will give fair warning that it is a switchblade knife within the meaning of the act. We hold, therefore, that a knife may be found to be a switchblade knife within the meaning of the Switchblade Knife Act if it is found that it can be made to open automatically by hand pressure, inertia, or gravity after insignificant alterations, and that one of its primary purposes is for use as a weapon.
Plaintiffs argue that they should have been granted a declaratory judgment against defendants, notwithstanding the jury’s verdict, because defendants did not connect the knives presented in evidence with the shipments in issue, and because there was no proof that the other sample knives retained or the other knives in the shipments were similar to those in evidence. All these contentions assume that defendants had the burden of producing evidence that the knives in the shipments were prohibited by the act. It is not clear that this assumption is correct. But even assuming that defendants bore the burden of production, plaintiffs’ contention that it was not met lacks merit. After the three knives were introduced, plaintiffs were asked to stipulate that they came from the shipments in issue. Plaintiffs’ counsel replied that two of them, “in their original pre-worked-on condition, and when they were lawful, were imported by the defendant [sic] Mitchell Mogal.” He stated that no one in the courtroom could identify the other ."knife, and it was received on the rep:resentation of the Assistant United iStates Attorney that it could be proved "that it came from one of the shipments in issue.
As to the two knives concededly imported by plaintiff Mitchell Mogal, Inc., plaintiffs contend that it was not stipulated that they were imported in one of the shipments in issue. In light of defendants’ clear request for a responsive stipulation, however, we cannot accept this strained construction of the response of plaintiffs’ counsel.
As to the third knife, and as to plaintiffs’ contention that it was not shown that the knives introduced in evidence were representative of those released to them, it is sufficient to observe that plaintiffs did not seek the production of any other sample knives retained by defendants, and that defendants’ inability to produce any of the knives released to plaintiffs was due to plaintiffs’ own refusal to redeliver them on demand, as required by the entry bonds. In fact, defendants sought at the trial to have plaintiffs directed to produce some of the knives released to them, and plaintiffs’ counsel opposed the application, stating that “we haven’t got all these knives” and that “I don’t even know what knives, if any, can be produced.” We think that plaintiffs should have been directed to produce the knives, or to stipulate that the knives in evidence were representative. In any case, plaintiffs should obviously not be allowed to profit by defendants’ inability to produce the knives which had been released to the plaintiffs and which they bound themselves to redeliver and failed to redeliver. If, therefore, the third knife should have been more fully connected, which we do not decide, or the knives released were not shown to be similar to those in evidence, the corresponding portions of plaintiffs’ complaint should have been dismissed, and the court’s failure to do so certainly did not prejudice plaintiffs. We therefore affirm the dismissal of plaintiffs’ complaint upon the jury’s verdict.
The judgment for the United States on its counterclaim for liquidated damages under the entry bonds was proper, whether or not the knives were barred by the Switchblade Knife Act. One of the conditions of the entry bonds, which were on Customs Form 7551, was that the importer should
“redeliver or cause to be redelivered to the order of the collector of customs, on demand by him, in accordance with the law and regulations in effect on the date of the release of said articles, any and all merchandise found not to comply with the law and regulations governing its admission into the commerce of the United States,”
unless a superseding bond had been filed. Plaintiffs failed to return on demand any of the knives released to them under the bonds, and have not disputed the amounts of liquidated damages, fixed by 19 C.F.R. § 25.17(d) as the value of the knives on entry and the estimated duties and taxes on them.
Although the language of the bonds is not wholly free of ambiguity, we have concluded that plaintiffs were therefore liable to pay the liquidated damages whether or not defendants’ determination that the knives violated the Switchblade Knife Act was finally upheld. Cf. United States v. Dieckerhoff, 202 U.S. 302, 310-312, 26 S.Ct. 604, 50 L.Ed. 1041 (1906); United States v. Daniel F. Young, Inc., 46 F.Supp. 373 (S.D.N.Y.1942), aff’d per curiam, 134 F.2d 413 (2 Cir. 1943). The Bureau of Customs is mandated by 46 Stat. 728 (1930), as amended, 19 U.S.C. § 1499, not to release imported merchandise which is required to be inspected before inspecting it “except under * * * bond or other security * * * to assure compliance with all applicable laws, regulations, and instructions * *
In accordance with this mandate, the clear purpose of the entry bonds is to place Customs, if it demands the return of goods released under the bonds, in as good a position as if it had not released them. Cf. United States v. Huber, 41 C.C.P.A. (Customs) 69, 72-73 (1953). This purpose would be frustrated if plaintiffs were held to be liable under the bonds for failure to redeliver the knives only if the knives were finally held to violate the Switchblade Knife Act.
Affirmed.
. We are sure that the jury understood this portion of the charge, as we do, as suggesting that it inquire whether any use of the knives other than as weapons could be served as well or better by other knives.
. Since this suggestion clearly favored plaintiffs, who suggested in their summation that many, if not all, pocket knives can be altered so as to open automatically, we find in it no basis for reversal.
. The Switchblade Knife Act was given a similar construction in Goldman v. Angle, No. 4815 — Civil-J, S.D.Fla., Dec. 12, 1961.
Analogously, a firearm which lacks a firing pin but which can be fired with a small nail in place of the pin has been held to be within the National Firearms Act, Int.Rev.Code of 1954, § 5848(1). United States v. Cosey, 244 F.Supp. 100 (E.D.La.1965). Contra, United States v. Thompson, 202 F.Supp. 503 (N.D.Cal. 1962). Compare Model Penal Code § 5.06(2) and Commentary (Ten.Draft No. 13, 1961).
. The record indicates that defendants intended only to bar entry of the knives Into the United States, while permitting their reexport abroad; if so, the burden of persuasion in an action seeking to •compel admission of the knives may be upon the importer. It has apparently "been assumed that an importer seeking admission of merchandise which has been •denied entry on the ground that it infringes a registered trademark, see 60 Stat. 440 (1946), 15 U.S.C. § 1124, has the burden of persuasion. See, e.g., Croton Watch Co., Inc. v. Laughlin, 208 F.2d 93 (2 Cir. 1953); cf. Richard J. Spitz, Inc. v. Dill, 140 F.Supp. 947 (S.D.N.Y. 1956). It might be contended, however, that such an action is in the nature of an action of replevin, see Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (dictum) ; Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 9-13, 4 L.Ed. 169 (1817), and that in a replevin action the collector would have had to justify his retention of the merchandise. Cf. Goldman v. American Dealers Serv., Inc., 135 F.2d 398 (2 Cir. 1943) (dictum).
Even if the burden of persuasion as to the shipments before the court was upon the defendants, it is arguable that in a declaratory judgment action, even one for a declaration of non-liability, the plaintiff should bear the initial burden of producing evidence sufficient to justify a judgment in his favor. See, e.g., Preferred Acc. Ins. Co. v. Grasso, 186 F.2d 987, 991, 23 A.L.R.2d 1234 (2 Cir. 1951) (dictum); Developments in the Law— Declaratory Judgments — 1941-1949, 62 Harv.L.Rev. 787, 837 (1949).
. Plaintiffs contend that Mr. Pinkussohn should not have been allowed to testify, as he was not named in the pretrial order, and that his testimony as to the uses of the knives was irrelevant and inflammatory. But plaintiffs did not seek a continuance to meet Mr. Pinkussohn’s testimony, or indicate how they were prejudiced by it. It is clear that his testimony on the uses of the knives was relevant to the issue whether they were switchblade knives.
. Plaintiffs contend that the counterclaim was based not upon the entry bonds but upon 46 Stat. 734 (1930), 19 U.S.C. § 1514, as it alleged that no timely protest of defendants’ demands for liquidated damages had been made and that “the said amounts are now conclusively due and owing, pursuant to” 19 U.S.C. § 1514. That section, however, creates no cause of action; it merely provides that certain decisions of the Customs shall be final if not protested within sixty days. Moreover, the counterclaim referred specifically to defendants’ demands, copies of which were attached as exhibits to plaintiffs’ complaint, for liquidated damages under the entry bonds. Thus plaintiffs were apprised of the basis of the counterclaim, as is underscored by the fact that their reply to the counterclaim pleaded as a defense that the sureties on the entry bonds were indispensable parties. (The sureties were notified of the trial of the counterclaim, and stated that they did not wish to appear.)
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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. Ross V. DUNN, Trustee, et al., Appellees (three cases). Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. FIRST AMERICAN NATIONAL BANK et al., Appellees. Mrs. Charlotte L. WORLEY, Adm’x, and C. H. Worley, Jr., a Minor, Appellants, v. Robert W. STURDIVANT et al., Appellees.
Nos. 13271-13273,13301,13302.
United States Court of Appeals Sixth Circuit.
March 3, 1958.
Charlotte L. Worley, per se.
Robert W. Sturdivant, Elkin Garfinkle and Bass, Berry & Sims, Nashville, Tenn., for First American Nat. Bank et al.
Robert W. Sturdivant and Elkin Gar-finkle, Nashville, Tenn., for Sturdivant et al.
Robert W. Sturdivant, Fred Elledge, Jr., Andrew M. Gant, Jr., J. O. Bass, Elkin Garfinkle, William Berry, Nashville, Tenn., for Dunn et al.
Before ALLEN and MILLER, Circuit Judges, and JONES, District Judge.
SHACKELFORD MILLER, Jr., Circuit Judge.
The several proceedings in the District Court, in which these five appeals were taken, arise out of the bankruptcy of the National Specialty Company. These bankruptcy proceedings, which started in 1951, have had our consideration in three prior appeals. United States v. Worley, 6 Cir., 213 F.2d 509, certiorari denied, 348 U.S. 917, 75 S.Ct. 301, 99 L.Ed. 719, rehearing denied, 1955, 348 U.S. 940, 75 S.Ct. 361, 99 L.Ed. 736; Worley v. Elliott, 6 Cir., 231 F.2d 526, certiorari denied, 352 U.S. 855, 77 S.Ct. 82, 1 L.Ed.2d 66, rehearing denied, 1956, 352 U.S. 937, 77 S.Ct. 229, 1 L.Ed.2d 170; Worley v. National Specialty Co., 6 Cir., 243 F.2d 165. The factual situation is set out in those opinions and need not be repeated here. The present five appeals, prosecuted in forma pauperis, have been heard and considered together by the Court upon the records and briefs and arguments of appellant, Mrs. Charlotte Worley, individually, and as Admin-istratrix of the estate of Claude Henry Worley, deceased, pro se, and the attorneys for the appellees. The voluminous records, in the form presented to us, are very unsatisfactory. The numerous motions, briefs and reply briefs filed by the appellants, obviously drafted and written without the assistance of an attorney, largely fail to clearly present and meet the real issues involved. Our consideration of the records and briefs, however, results in the following conclusions.
Following the denial of petition for certiorari in United States v. Worley, supra, the appellants filed in the District Court on April 21, 1955, a petition for a new trial in said cause, which motion the Trustee in Bankruptcy moved to strike. Following a hearing before Judge Martin, a member of this Court, sitting as a District Judge by designation, an order was entered on May 6, 1957, denying the motion for a new trial and sustaining the motion to strike. An order was also entered directing the Referee to schedule a final meeting of creditors and report his actions therein to the District Court. Appeals No. 13,301 and No. 13,302 complain of these orders. Favorable consideration by this Court of these appeals is foreclosed by our previous rulings in United States v. Worley, supra, Worley v. Elliott, supra, and Worley v. National Specialty Co., supra, which has become the law of the case. We expressly stated in Worley v. Elliott, supra, 231 F.2d 526, 527, referring to our ruling in United States v. Worley, supra, 213 F.2d 509, “Our decision has become the law of the case in this respect and will not be reconsidered by us nor relitigated in the District Court.” We closed the opinion in that case with the statement, “The decrees of the bankruptcy court are affirmed and it is directed to proceed as expeditiously as possible with the final liquidation of the estate.” Appellants’ motion for a new trial filed in the District Court after denial of certiorari by the Supreme Court was properly overruled by the District Judge. In addition to the lack of merit in the motion, obviously, it was not timely. The order directing a final meeting of creditors looking to the closing of the bankruptcy proceedings was clearly proper and in keeping with the directive of this Court in Worley v. Elliott, supra. We now repeat that directive and call appellants’ attention to the fact that there should be an end to a case in litigation, and that when litigants have had their day in court and a final judgment rendered, the successful party and the court should not be burdened with successive efforts thereafter to relitigate the same issues. Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 525-526, 51 S.Ct. 517, 75 L.Ed. 1244. See also our previous opinion in Worley v. National Specialty Co., 243 F.2d 165, 166.
Appeals Nos. 13,271, 13,272 and 13,273 arise out of actions filed by the appellants in the District Court. Motions to dismiss on behalf of the appellees in each case were sustained by the District Judge, who filed a written explanation of the ruling.
The claim in No. 13,271 was for salary alleged by Mrs. Worley to be due and owing her by the bankrupt corporation. The District Judge ruled that the exclusive remedy was to file the claim with the Referee in the bankruptcy proceeding; that the United States had not given its consent to the type of action being asserted against it, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; United States v. Worley, supra; and that the allegations were insufficient to establish liability against the other individual appellees.
The claim in No. 13,272 was for recovery by appellants personally of corporate funds of the bankrupt alleged to have been misappropriated. The District Judge ruled that a stockholder has no personal cause of action against an officer of the corporation for misappropriation of assets, which right of action accrues to the trustee in bankruptcy, and that the proper procedure for the assertion of an unliquidated claim against a bankrupt estate was to file the claim with Referee in Bankruptcy.
The claim in No. 13,273 was the alleged improper settlement of claims by the Trustee in Bankruptcy. The District Judge ruled that the settlements complained of had been expressly approved by the Court in other proceedings after examination of the facts pertaining thereto.
Orders of dismissal were entered on March 4, 1957, in the two cases first above referred to, and on February 26, 1957, in the third case above referred to. Notice of appeal was filed in each case on March 8, 1957. On March 18, 1957, appellants filed in the District Court in each case a motion to dismiss the appeal and that the Court alter and amend its judgment. These motions were also argued before Judge Martin who on May 6, 1957, entered an order in each case which stated that upon consideration of the entire record in the cause and the arguments of the attorneys appointed by the Court to represent the appellants, it appeared that insofar as the motion sought to alter and amend the judgment previously entered, it raised matters that had previously been adjudicated adversely to the appellants, and no error appearing in the judgment, the motion was denied. The present appeals were taken on June 6, 1957, from these orders of May 6, 1957.
In our opinion, the three actions were properly dismissed by the District Judge in the orders of February 26, 1957, and March 4, 1957, and there was no error in the entry of the subsequent orders on May 6, 1957, denying the appellants’ motion to alter and amend the judgment in each ease.
The judgment in each of the five appeals is affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
F. T. TURNER v. Burnett DICKEY.
Circuit Court of Appeals, Sixth Circuit.
April 4, 1929.
No. 5172.
J. W. Canada, of Memphis, Tenn., for appellant.
Hunter Wilson, of Memphis, Tenn., for appellee.
PER CURIAM.
Judgment of the District Court affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_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.
Michael O. WATSON, Petitioner-Appellant, v. A. R. JAGO, Superintendent, Respondent-Appellee.
No. 76-1979.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 3, 1976.
Decided and Filed June 14, 1977.
James R. Willis, Stephen O. Walker, Cleveland, Ohio, Michael O. Watson, for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Allen P. Adler, Columbus, Ohio, for respondent-appellee.
Before WEICK, PECK and LIVELY, Circuit Judges.
JOHN W. PECK, Circuit Judge.
Appellant Michael Watson was indicted by a Cuyahoga County, Ohio, grand jury for deliberate and premeditated murder in the first degree, in violation of former section 2901.01 of the Ohio Revised Code. At trial, appellant claimed self-defense. The jury found appellant guilty of the lesser included offense of murder in the second degree, and appellant was sentenced to life imprisonment. After appealing to the Cuyahoga County Court of Appeals and to the Ohio Supreme Court, appellant sought collateral review of his conviction in the federal district court by petition for writ of habeas corpus. The district court, however, denied the petition.
Appellant has brought this appeal, making several arguments in support of his petition. We reach only one, that appellant was denied due process of law under the Fourteenth Amendment when he was forced during the state court trial to defend against a charge of felony-murder, which was not contained in the indictment. Because we agree with appellant on this issue, we reverse and remand the case to the district court with instructions to grant the writ of habeas corpus.
I
On February 6, 1973, in the late afternoon, appellant and a friend, John Bell, entered the store of a Cleveland, Ohio grocer, William Dallas. Bell asked the grocer’s wife, who was working in the store along with her husband, for a six-pack of beer. Mrs. Dallas got the beer from the cooler and set it on the counter. William Dallas then came over and asked Bell for some identification to show that he was of age to buy the beer. A conversation concerning credentials followed. The conversation ended when appellant drew a pistol and shot Mr. Dallas twice. One bullet struck Dallas in his left arm. The other bullet struck Dallas in the head, killing him. Mrs. Dallas witnessed the shooting.
According to Mrs. Dallas, immediately before the shooting, appellant had said to Mr. Dallas that he had credentials and had asked whether Mr. Dallas wanted to see them. According to appellant and Bell, however, Mr. Dallas had pulled a gun, and appellant claimed that he had fired in self-defense. Most of the store owners in the area were armed, and on that day, Mr. Dallas had carried a gun in the pocket of his white butcher-type apron. The police later found the gun owned by Mr. Dallas on the floor, under the victim’s body. That gun had not been fired.
Immediately after the shooting, appellant and Bell fled the scene without the beer in a red 1964 Cadillac, which had transported appellant and Bell to the store and which had carried two other friends. A description and the license plate number of the automobile were given to the police by a witness in the vicinity of the store. A couple of hours later, the automobile was stopped. Three males were arrested, but appellant escaped on foot. Six days later, on February 12,1973, appellant surrendered to the police.
Appellant was indicted for deliberate and premeditated first degree murder only. Nevertheless, at the state court trial, the prosecutor in his opening statement, after reading the indictment for deliberate and premeditated murder, asserted that:
“... the evidence... will convince you beyond a reasonable doubt that this man Watson [appellant] did in fact maliciously, premeditatively and while in the act of a robbery murder Willie Dallas.”
Defense counsel, before making his opening statement, moved to dismiss the indictment. He argued that it was an infringement of a defendant’s right to notice of criminal charges to be brought against him by the State for the prosecutor to present a case on the basis of felony-murder when the indictment specified only a charge of first degree murder with deliberate and premeditated malice and did not include a charge of felony-murder. The prosecutor, when asked by the Court to reply to this argument, stated that premeditated murder and felony-murder were both first degree mur-. der and that the indictment, by charging first degree murder, did not have to include a statement that the indictment was for felony-murder for a defendant to be prosecuted on that charge. The trial court overruled the motion to dismiss, and the trial proceeded with the presentation of the State’s case.
The prosecutor called several witnesses: Mrs. Dallas, the wife of the victim; a witness who was near the scene of the crime; Willie Waldon and Gerald Ford, friends of appellant who waited in the Cadillac when the killing took place; Peter Becker, a police detective who interrogated Ford after the shooting; and a police officer who arrived at the scene of the crime shortly after the killing. Much of the questioning focused on the possible robbery.
When the prosecution stated that it would rest its case, defense counsel, out of the jury’s hearing, moved to withdraw the charge of first degree murder from the jury’s consideration. Defense counsel argued that there was no evidence to support a possible jury verdict of first degree murder, first, because there was no evidence of premeditation or deliberation on appellant’s part and secondly, because there was no evidence to show the commission of a robbery. The prosecutor disagreed, responding that the evidence did show a premeditated killing and that he had proven a prima facie case of robbery. The Court denied the defense motion.
After a short recess, the prosecutor in proceedings between the Court and counsel in the Court’s chambers, requested the Court not to charge the jury on first degree felony-murder. The prosecutor stated that the proof showed that some of the elements of armed robbery were present and that such facts were relevant with respect to the complete circumstances of the case.
Defense counsel immediately protested. He reminded the Court that at the start of the trial he had moved for the exclusion of any reference to a felony-murder because the indictment did not mention felony-murder. He further argued that because the Court allowed the trial to proceed with the inclusion of the felony-murder charge and because the defense had patterned its cross-examination in large part on the refutation of inferences supporting a charge of felony-murder, to drop the felony-murder charge would be prejudicial since it would preclude the defense counsel from talking about what he had tried to establish on cross-examination.
The prosecutor replied that the effect of not charging the jury on felony-murder was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” (State Court Trial Transcript 171.) The prosecutor denied that there could be prejudice in removing that one count since there was evidence to support a verdict of deliberate and premeditated first degree murder. The evidence of a robbery was characterized as “ancillary” to the deliberate and premeditated murder.
The Court agreed with the prosecution and made a tentative ruling that the jury would be charged only on deliberate and premeditated first degree murder. Defense counsel stated for the record that it was a strange situation for the State to start out by saying that it would prove felony-murder along with premeditated murder, to deny that there had to be a separate indictment for felony-murder from premeditated murder, to spend a great part of its case trying to prove felony-murder, and then, after resting its case, to seek withdrawal of the felony-murder charge and admit that a separate indictment was needed for felony-murder. Nevertheless, the Court adhered to its tentative decision to charge only deliberate and premeditated first degree murder.
The trial proceeded with the defense calling appellant and John Bell and the prosecution calling Mrs. Dallas in rebuttal. After the Court denied certain defense motions, the Court charged the jury on deliberate and premeditated first degree murder as charged in the indictment. The jury found appellant not guilty of deliberate and premeditated first degree murder but guilty of the lesser included offense of second degree murder.
Appellant appealed unsuccessfully to the Cuyahoga County, Ohio Court of Appeals and to the Ohio Supreme Court. His case is now before us because the district court denied his petition for a writ of habeas corpus. The question which we reach deals with the fact that appellant was forced to defend against a charge of felony-murder that was not brought by the grand jury in the indictment. There are two main issues with respect to this question: (1) whether there was a constructive amendment to the indictment, and (2) whether, if there was a constructive amendment, it violated appellant’s constitutional rights under the Fourteenth Amendment in this state court, as opposed to federal court, trial.
II
Under the Fifth Amendment’s provision that no person shall be held to answer for a capital crime unless on the indictment of a grand jury, it has been the rule that after an indictment has been returned its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930). In 1887, the Supreme Court in Bain, supra, 121 U.S. at 9-10, 7 S.Ct. 781, held that a defendant could only be tried upon the indictment as found by the grand jury and that language in the charging part could not be changed without rendering the indictment invalid. In Stirone, supra, 361 U.S. at 217, 80 S.Ct. at 273, the Supreme Court stated that Bain “stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” This rule has been reaffirmed recently several times in this Circuit. United States v. Maselli, 534 F.2d 1197, 1201 (6th Cir. 1976); United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976). Although the language in Bain is broad, it has been recognized that Bain and Stirone do not prevent federal courts from changing an indictment as to matters of form or surplus-age. Russell v. United States, supra, 369 U.S. at 770, 82 S.Ct. 1038; United States v. Hall, 536 F.2d 313, 319 (10th Cir. 1976); United States v. Dawson, 516 F.2d 796, 801 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975); Stewart v. United States, 395 F.2d 484, 487-89 (8th Cir. 1968); United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970); United States v. Huff, 512 F.2d 66 (5th Cir. 1975).
In Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061, 1071 (1969), this definition of an amendment prohibited by Stiro,ne and Bain, as opposed to the concept of a variance in proof from the indictment, appears:
An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.
These definitions have been quoted with approval by several courts of appeal. United States v. Pelose, 538 F.2d 41, 45 n. 8 (2d Cir. 1976); United States v. Somers, 496 F.2d 723, 743 n. 38 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Bursten, 453 F.2d 605, 607 (5th Cir. 1971), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972).
This distinction between an amendment and a variance is critical because a variance is subject to the harmless error rule, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), whereas an amendment prohibited by Stirone and Bain is prejudicial per se. United States v. Bryan, 483 F.2d 88, 96 (3d Cir. 1973); United States v. DeCavalcante, 440 F.2d 1264, 1271 (3d Cir. 1971);. Gaither v. United States, supra, 413 F.2d at 1072. Sometimes, however, there is a problem in identifying when an amendment is made to an indictment. That problem occurs when the charging terms of an indictment have not been literally changed but have been effectively altered by events at trial. United States v. Somers, supra, 496 F.2d at 744.
Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, involved a “constructive” amendment. The defendant was found guilty, but the Supreme Court reversed the conviction, stating that the defendant’s right to be tried only on charges presented in an indictment returned by a grand jury had been destroyed even though the indictment had not been formally changed. Stirone v. United States, supra, 361 U.S. at 217, 80 S.Ct. 270.
Under Stirone, the question to be asked in identifying a constructive amendment is whether there has been a modification at trial in the elements of the crime charged. United States v. Somers, supra, 496 F.2d at 744; United States v. DeCavalcante, supra, 440 F.2d at 1272; United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). Such a modification would result in a constructive amendment. Of course, if a different crime was added to the charges against which the defendant had to meet, there would have been a constructive amendment. United States v. Sir Kue Chin, 534 F.2d 1032, 1036 (2d Cir. 1976); United States v. Holt, 529 F.2d 981 (4th Cir. 1975).
Applying this test to the present case, there clearly was a constructive amendment made to the indictment if appellant is correct in stating that felony-murder was added to the charges against which appellant had to defend at the state trial. Under Ohio law, a felony-murder conviction cannot be sustained under an indictment charging first degree murder with premeditated and deliberate malice. The Ohio Supreme Court in State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964), held that although felony-murder and premeditated murder were both included in the same paragraph of the then existing first degree murder statute, felony-murder and premeditated murder constituted separate offenses. For appellant to be convicted of felony-murder he would have had to be indicted for that crime.
The question that the present case poses is whether, under the facts of this case, felony-murder was effectively added to the charges against which appellant had to defend. The district court held that there was no factual basis from which to conclude an amendment had been made to the indictment, even though the prosecutor, during the State’s case, improperly tried to prove felony-murder. The district court reasoned, and on appeal appellee contends, that there was no amendment to the indictment because the prosecutor’s opening statement included a reading of the indictment and because the trial court’s charge to the jury was only for deliberate and premeditated first degree murder and did not include a charge of felony-murder.
However, the prosecution and defense counsel throughout the State’s case relied on the trial court’s ruling and sought respectively to prove and negate commission of a robbery at the time of the shooting. On cross-examination, defense counsel elicited from Mrs. Dallas the statements that neither appellant nor Bell said “stick it up,” that neither appellant nor Bell gave any indication that they were robbing or attempting to rob the store, that neither appellant nor Bell took anything of value in the store, and that neither appellant nor Bell acted — until the shooting — as other than normal customers.
In response, the prosecution called Henry Towns, a witness in the vicinity of the store. Towns described seeing appellant and Bell run up a street away from the area of the grocery store and enter a waiting red 1964 Cadillac, which quickly sped away from the scene. Towns further testified that he saw either appellant or Bell with something under his arm and that he thought that the bar next to the Dallas grocery store had been robbed.
After brief testimony from an intervening witness, the prosecution called Gerald Ford. The prosecution’s sole purpose in calling and vigorously questioning Ford was to prove a robbery. After the prosecution was granted permission to cross-examine Ford as a hostile witness, he was asked whether in the car after the shooting if appellant had admitted to his friends that in the store he told William Dallas that it was a “stickup.” Ford first denied that appellant had said anything about a stickup and then asserted that he could not remember. The prosecutor read from Ford’s statement, which was taken by police after he was arrested and which incriminated the appellant. Ford said that he had signed the statement but repeated his claim that he did not remember that he had stated anything about a robbery. In permitting the prosecutor to cross-examine Ford as a hostile witness, the Court gave as its “principal reason” for allowing the cross-examination the fact that the State in its opening statement contended that the killing took place during an attempted robbery.
When cross-examined by defense counsel, Ford denied that there was any conversation among the four friends in the Cadillac about an effort to rob the grocery store. Ford also testified that the statement he gave was made under pressure of possible criminal charges against him at a time when he was not free to leave the police station.
The prosecution also called two police detectives, Peter Becker, who was one of the two officers who took Ford’s statement, and William Vargo, who was an officer who arrived at the scene of the crime shortly after the killing. On direct examination, Becker was questioned about the nature of his interrogation of Ford to show that the statement was freely given. On cross-examination, Becker admitted that Ford never said that any of his three companions in the Cadillac on the day of the shooting ever stated to Ford that appellant and Bell had the intention of robbing the store. Vargo admitted on cross-examination that when he turned over the dead body of William Dallas, he saw that the right hand of Dallas was inches away from where his gun lay on the floor. Shortly thereafter, the prosecution stated that it would not ask that the Ford statement be formally received into evidence.
It thus clearly appears that the strategy of counsel was vitally affected by the trial court’s ruling allowing the prosecution to prove felony-murder. The trial proceeded on the basis that, under the Ohio first degree murder statute, former Ohio Revised Code § 2901.01, to uphold a conviction of first degree murder, the State had to prove that appellant purposely killed another person and that appellant either killed with deliberation and premeditation or killed during the commission of a felony. State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11 (1951); Robbins v. State, 8 Ohio St. 181 (1857); Note, The Felony Murder Rule in Ohio, 17 Ohio St. L.J. 130 (1956). A major portion of the trial, during the State’s case, concerned the possible robbery and not facts going to a determination of premeditation. The trial court ruling that the State could prove felony-murder was critical to defense strategy because appellant at trial claimed self-defense, which is not a defense to felony-murder.
The trial court thus permitted a constructive amendment and then, upon request of the prosecution, permitted a withdrawal of the amendment. As the prosecutor aptly put it, when he asked the trial court not to charge the jury on felony-murder, the effect was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” The Ohio grand jury had not put such a felony-murder count in the indictment.
Ill
Because the law of a constructive amendment has developed in the context of federal court trials and the Fifth Amendment, it must be determined whether appellant’s constitutional rights under the Fourteenth Amendment were violated in his state court trial. The problem stems from the fact that the rule against amendments contained in Ex Parte Bain, supra, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, and Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, rests on the Fifth Amendment’s guarantee of a grand jury indictment before a person can be held to answer for a capital crime. Ex Parte Bain, supra, 121 U.S. at 10, 13, 7 S.Ct. at 786, 788, made clear the Fifth Amendment basis for the rule:
If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says, “no person shall be held to answer,” may be frittered away until its value is almost destroyed.
[A]fter the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.
The Fifth Amendment’s guarantee of a grand jury indictment in cases of capital crimes, however, has never been incorporated into the Fourteenth Amendment and hence is not applicable to the states. In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not require a grand jury indictment in a prosecution by the State of California for a capital crime. While it is true that Hurtado once stood in a line of Supreme Court cases that refused to incorporate Bill of Rights guarantees relating to criminal procedure into the Fourteenth Amendment and while it is true that such older precedent, except for Hurtado, has been overruled and most of the Bill of Rights guarantees relating to criminal procedure have been incorporated into the Fourteenth Amendment as fundamental rights, Hurtado remains good law. Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Picard v. Connor, 404 U.S. 270, 273, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Saunders v. Buckhoe, 346 F.2d 558, 559 (6th Cir. 1965).
In addition, even if a state adopts a grand jury system, federal constitutional requirements, binding in federal criminal cases are not binding on the states, Alexander v. Louisiana, supra, 405 U.S. at 633, 92 S.Ct. 1221, except with respect to the racial or national composition of grand juries. Carter v. Jury Commission, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Thus, with respect to amendments, federal courts have viewed their legality as “primarily a matter of state law.” United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975). See Henderson v. Cardwell, 426 F.2d 150, 152 (6th Cir. 1970); Stone v. Wingo, 416 F.2d 857, 859 (6th Cir. 1969).
By statute, Ohio law allows certain amendments. Ohio Revised Code § 2941.30 at the time of appellant’s trial provided, and now provides:
The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form of substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment or information or to cure a variance between the indictment or information and the proof, the accused is entitled to a discharge of the jury on his motion, if a jury has been impaneled, and to a reasonable continuance of the cause, unless it clearly appears from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. In case a jury is discharged from further consideration of a case under this section, the accused was not in jeopardy. No action of the court in refusing a continuance or postponement under this section is reviewable except after motion to and refusal by the trial court to grant a new trial therefor, and no appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court finds that the accused was prejudiced in his defense or that a failure of justice resulted.
In the present case the Ohio Revised Code § 2941.30 would not permit an amendment that changed the indictment to add another, different crime. See Breinig v. State, 124 Ohio St. 39, 42-43, 176 N.E. 674 (1931); Hasselworth v. Alvis, 76 Ohio Law Abs. 238, 143 N.E.2d 862 (1956); Horsley v. Alvis, 281 F.2d 440 (6th Cir. 1960). In no way was Ohio Revised Code § 2941.30 involved in the present case. According to Breinig, such a far reaching amendment as occurred in the present case would violate fundamental laws, cloaking the defendant with the right under the Ohio State Constitution to “demand the nature and cause of the accusation against him.” 124 Ohio St. at 42-43, 176 N.E.2d at 676.
More important to appellant’s petition for a writ of habeas corpus is the fact that an amendment to an indictment in certain cases can implicate rights under the United States Constitution which are applicable to the states, such as fair notice of criminal charges, double jeopardy, and effective assistance of counsel. See United States ex rel. Wojtycha v. Hopkins, supra, 517 F.2d 425. This Court in United States v. Pandili-dis, supra, 524 F.2d at 648, recognized that:
. the rules governing the content of indictments, variances and amendments are designed to protect three important rights: the right under the Sixth Amendment to fair notice of the criminal charge one will be required to meet, the right under the Fifth Amendment not to be placed twice in jeopardy for the same offense, and the right granted by the Fifth Amendment, and sometimes by statute, not to be held to answer for certain crimes except upon a presentment or indictment returned by a grand jury.
There is no question that the Fourteenth Amendment encompasses the right to fair notice of criminal charges. The Supreme Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), in dealing with the Due Process Clause of the Fourteenth Amendment, stated that:
A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence..
Likewise, in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), the Supreme Court declared that:
No principle of procedural due process is more clearly established than that of notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.
See United States v. Maselli, supra, 534 F.2d 1197, 1201; United States v. Beard, 436 F.2d 1084, 1086-88 (5th Cir. 1971); Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960). Also, under the Fourteenth Amendment, states are obliged to observe the prohibition against double jeopardy, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and allow counsel sufficient time to prepare a defense. Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
To allow the prosecution to amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not brought by the grand jury unquestionably constituted a denial of due process by not giving appellant fair notice of criminal charges to be brought against him. See DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937). As a matter of law, appellant was prejudiced by the constructive amendment. See Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. DeCavalcante, supra, 440 F.2d 1264; Gaither v. United States, supra, 134 U.S.App.D.C. 154, 413 F.2d 1061. The fact that the charge to the jury only included first degree premeditated murder according to the indictment could not cure the prejudice to the appellant. Furthermore, an amendment cannot properly be justified by a prosecuting attorney on the ground that defense counsel should have sought a bill of particulars. Russell v. United States, supra, 369 U.S. at 769-70, 82 S.Ct. 1038; United States v. Norris, supra, 281 U.S. at 622, 50 S.Ct. 424.
The order of the district court is reversed, and the case is remanded to the district court with instructions to grant the writ of habeas corpus, conditioned on the State’s right to retry the appellant. See Price v. Georgia, 398 U.S. 323,
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_casetyp2_geniss
|
G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - commercial disputes - debt collection, disputes over loans. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
ROOSEVELT et al. v. MISSOURI STATE LIFE INS. CO. et al.
No. 10254.
Circuit Court of Appeals, Eighth Circuit.
Aug. 1, 1935.
C. E. Daggett, of Marianna, Ark. (J. B. Daggett, of Marianna, Ark., Walter Chandler and J, H. Shepherd, both of Memphis, Tenn., Daggett & Daggett, of Marianna, Ark., and Chandler, Shepherd, Owen & Heiskell, of Memphis, Tenn., on the brief), for appellants.
George B. Rose, of Little Rock, Ark. (Allen May and Warren Rogers, both of St. Louis, Mo., Richard B. McCulloch, of Marianna, Ark., and ’ Rose, Hemingway, Cantrell & Loughborough, of Little Rock, Ark., on the brief), for appellees.
Before GARDNER, SANBORN, and WOODROUGli, Circuit Judges.
Rehearing denied. Sept. 23, 1935.
GARDNER, Circuit Judge.
Appellees Missouri State Life Insurance Company and Burk Mann, trustee, commenced this suit in equity to foreclose a real estate mortgage deed of trust which secured payment of $240,000 and interest. The deed of trust covered lands in several counties in Arkansas. Defendants in the lower court were Hughes Investment Company, a corporation, Arthur F. Douglas, record owner of the land, and various individuals comprising a committee known in the record as the committee for the protection of holders of bonds sold through G. L. Miller & Co., Inc., and others. The Hughes Investment Company filed an answer denying the allegations of the bill for foreclosure. The committee and Arthur F. Douglas filed answer and cross-bill. The issues before us are those raised by this cross-bill and the answer thereto.
In the cross-bill it is alleged that the committee were the victims of a fraud perpetrated by the Missouri State Life Insurance Company and its representatives, in a transaction involving the exchange by the committee of property known as the Medical Arts building in Memphis, Tenn., for a consideration partly in cash and partly in a first mortgage note secured by a deed of trust on Arkansas lands. The committee demanded damages for fraud and deceit in the sum of $210,000.
The case was referred to a special master, with directions to take the testimony and to report findings of fact and conclusions of law. In due time the master made and reported findings to the effect that the fraud alleged had been committed, and that the committee had suffered damages thereby in the sum of $210,000. Exceptions to the report were filed, and the lower court, upon hearing, sustained all of the exceptions and filed findings of fact and conclusions of law of its own, and entered decree thereon in favor of the appellees, dismissing the cross-bill for want of equity, and decreeing foreclosure of the trust deed for the full amount of the debt thereby secured. From this decree, the cross-complainants appealed to this court, and, because of procedural defects, we reversed the judgment. Roosevelt v. Missouri State Life Ins. Co., 70 F.(2d) 939. On remand to the lower court, this defect was remedied, and thereupon the lower court again made findings of fact and conclusions of law which are identical with those formerly made, and entered decree of foreclosure and dismissed the cross-bill. The record having been perfected, the case is now before us on the merits.
To understand the relationship of the insurance company, the committee, and other parties, and the nature of the transaction in which fraud is alleged to have been perpetrated, it is necessary to detail some otherwise unrelated facts which appear in the court’s findings, or from undisputed evidence.
A Mrs. Rees owned a lot in the business section of Memphis, Tenn. G. L. Miller & Co., of New York, investment bankers, made a specialty of taking mortgages upon urban property to secure bond issues which they sold, using the proceeds in financing the construction of buildings. This concern and Mrs. Rees became interested in the erection of a building on her lot in Memphis, to be called the Medical Arts building. To that end Mrs. Rees and a Mr. Sackett organized a corporation called the Madison Building Company, to which Mrs. Rees conveyed the lot. The Madison Building Company executed to G. L. Miller & Co. a mortgage to secure a bond issue amounting to $825,000. These bonds were sold to a great number of persons. Mrs. Rees at first took for her interest in the property a second mortgage, which she afterwards exchanged for preferred stock in the Madison Building Company. Before the building was completed, G. L. Miller & Co. failed. A receiver was appointed to take charge of the building in the suit of a mechanic’s lienholder. The trustee for the bondholders intervened, and the receivership was extended for their protection. Other holders of mechanics’ liens intervened. The Madison Building Company filed an answer, setting up that the mortgage was usurious.
A great part of the building had not been divided up by partitions, and with but little of it rented, the income was not adequate to pay the carrying charges. The total claims ahead of Mrs. Rees amounted to $1,010,500. In this condition of her affairs, she placed them in the hands of Fred Callahan, a lawyer in Memphis, Tenn., who made various unsuccessful efforts to refinance so as to save something for her, but accomplished nothing until he met Burk Mann, who suggested to him that the Missouri State Life Insurance Company would be glad to exchange some of its lands in Arkansas for the office building in Memphis. Mr. Mann was a member of a firm of Arkansas attorneys who represented the life insurance company in its Arkansas foreclosure business, being regularly retained and on a salary basis. After considerable negotiations between the insurance company and Callahan, they entered into a contract on the 21st day of July, 1927, by which it was provided that Callahan was to deliver to the insurance company $850,000 in bonds, secured by a first mortgage on the Medical Arts building; that a corporation which he would organize, and which would execute the mortgage, would finish the building °and clear it of liens, and to guarantee his so doing, he would deposit with the insurance company the sum of $31,000. In consideration of the delivery of the bonds, the insurance company was to pay Callahan $100,000 in cash, from which the $31,000 to be deposited to secure completion of the building was to be deducted, and convey to him by warranty deed, free of all liens except the taxes and assessments becoming payable after the year 1927, lands to be selected by Mann, of the value of $750,000, according to the cost to the insurance company on the day they were transferred to its real estate division after foreclosure. The insurance company also agreed that it would loan to Callahan $120,000 on $220,000 in value of the lands, valued as above set forth. The insurance company also agreed to convey to Callahan, or his nominee, lands which the insurance company carried on its books at a value of $430,000, which lands were to be used by Callahan in settling with the holders of the bonds on the Medical Arts building. The insurance company further agreed that it would give Callahan, or his assigns, an option to borrow $215,000 from the insurance company, which loan should be secured by a first mortgage on the $430,-000 list of lands. The contract further provided that unless the deal should be concluded on or before October 15, 1927, it should become null and void at the option of the insurance company. This time was, on August 22, 1927, extended to November 15, 1927.
After this contract with the insurance company had been tentatively agreed upon, but before the date of the execution of the formal contract, Callahan had several meetings with the committee representing the bondholders of G. L. Miller & Co., appointed by the United States District Court at New York City in a bankruptcy proceeding of the G. L. Miller & Co. On July 17th and 18th, Callahan submitted to the committee a proposal for contract, and this proposal was accepted by the committee, but it was contemplated by the parties that a formal contract would be executed at a later date; and on August 3, 1927, the committee and Callahan entered into a formal contract which was, however, subject to the approval of the United States District Court for the Southern District of New York. By the terms of this contract, the committee agreed to transfer to Callahan the title to the Medical Arts building, free of liens, and as consideration for such transfer, Callahan agreed to pay the committee $170,000 in cash, and to deliver to the committee a first mortgage note for $430,000 to be executed by a corporation to be organized by Callahan and to be secured by a mortgage on approximately' 8,500 acres of land theretofore acquired by the real estate division of the insurance company by foreclosure of first mortgages, the value of such lands to be ascertained by their cost to the insurance company.
On September 3, 1927, an agreement was entered into between the insurance company and the committee, in pursuance of the contract with Callahan, and by this contract the insurance company agreed directly with the committee that the insurance company would carry out its contract with Callahan. The committee hesitated to recommend to the court the confirmation of the contract, and demanded of Callahan that there either be more land included in the mortgage, or that the amount of the loan by the insurance company be increased from $215,000 to $240,000. On September 7, 1927, the insurance company agreed to increase the loan to $240,000 oh the land conveyed, as the basis of the $430,000 mortgage, and on that date the insurance company delivered to the committee the appraisals and other information which Callahan had contracted to present not later than the date of the hearing before the court.
On the evening of September 8, 1927, Callahan had a long interview with the New York attorneys of the committee, as a result of which, and at the suggestion of the committee’s attorneys that he “put in writing his statement as to the value of these lands in order that we could have something for the consideration of the committee and of the court in definite form,” he wrote to the chairman of the committee, Mr. Roosevelt, a letter which Mr. Foster, one of the committee’s attorneys, helped him to prepare from the data at hand, in which he set forth accurately the acreage, the character of each tract of land, the amount of the original loan upon it by the insurance company, and the foreclosure cost. This letter shows that the lands aggregated 10,128 acres, appraised by the insurance company before its original loans were made at $889,158, and costing on foreclosure sales $430,378.36. At this interview, Callahan stated that he had not seen any of the lands on which the $430,000 mortgage was to be executed, but he presented letters from leading real estate firms in Memphis, Tenn., giving the average value of improved and unimproved lands in the counties where these lands lay. He embodied in his letter an analysis of these estimates, showing the value of cleared lands in Crittenden county $93.75 per acre, uncleared lands $17.50 per acre, and a similar average valuation for each of the other counties. Mr. Mann was present at the conference, but took no part in it, and stated in reply to inquiry that he knew nothing about the lands. He was requested to appear in court the following day, but declined so to do, saying that he could give the court no information.
Since the letter of September 8th was written by Callahan at the request of representatives of the committee, and was apparently intended to summarize in written form his statements as to the value and general character of the lands, and since it was prepared for the purpose of use by the committee and the court, and since no objection has appeared to its fairly representing what was said by Callahan, we shall again refer to it as the best and most accurate evidence of what he did say at this conference.
It is here observed that the letter lists each tract of land separately, classifies the acreage of each tract, and places a value on each class of land. For instance, tract No. 90 is listed as 1,800 acres cultivated land at $100; 200 acres pasture at $50; 200 acres timber at $30; 100 acres lake, no value. Tract No. 92 is listed as 160 acres cultivated land at $75; 100 acres almost cleared at $60; 60 acres timber at $40. Submitted with the letter were pliotostatic copies of inspectors’ reports. These reports were those made by the insurance company’s inspectors as the basis for making the original loans. The letter closes with the following paragraph:
“While I have not personally inspected any of the lands, and the information furnished you is based upon appraisals made by the Missouri State Life Insurance Company, and from other sources mentioned above, I feel that it is fair to assume that the Insurance Company employed competent inspectors, and that the appraisals made by said inspectors, which I herewith submit, furnish the best available data as to the value as of the date of inspection, i would further state that Mr. C. W. Watson, of Marx & Bensdorf, and Mr. C. F. Williams, of Bolton Smith & Company, have no personal interest in this matter and are both connected with old and reliable firms of Memphis, Tennessee.”
On the next day, Mr. Roosevelt, chairman of the committee, and Mr. Callahan appeared before the United States District Court, Judge Mack presiding, and a hearing was had. Some of the bondholders objected to the proposed arrangement, calling attention to the fact that the farm lands were of very little value at that time, and that they did not think the Memphis property should be exchanged for farm land, but the court finally approved the arrangement on condition that the loan should be increased from $215,000 to $240,-000, and that the committee should not be required to bid for the Medical Arts building more than $500,000. At this hearing, the letter of Callahan to the committee was read in open court, and Mr. Callahan was interrogated by Judge Mack relative to the properties. The court inquired of the committee whether it had had an inspection and appraisements of the land and Mr. Roosevelt replied that they had not, but that they could have the lands appraised in ten days at a cost of $500. He asked for no postponement of the hearing in order that an appraisement might be made, and the proposed exchange was finally approved by the court.
Following this meeting in New York, Callahan returned to Memphis and organized the Hughes Investment Company, to which the 10,128 acres of land were conveyed on October 28, 1927, and on the same day the Hughes Investment Company made a mortgage of $430,000 to William P. Metcalf and the First National Bank of Memphis, as trustees for the committee. The committee was required to exercise its option to borrow $240,000 on the lands within ninety days, which option was extended by the insurance company from time to time at the request of the committee.
In May, 1928, the committee had an appraisement of the lands made, which showed in detail their condition and valued the whole at $258,550.50, and on October 27, 1928, after knowledge of the value fixed by this appraisement, the committee exercised the option to obtain the loan of $240,000. On October 30, 1928, the Hughes Investment Company, which held title to the land, executed a- $240,000 mortgage on it to Burk Mann as trustee for the insurance company. On October 31, 1928, the Hughes Investment Company conveyed the land to Arthur F. Douglas as agent for the committee. The trustees in the $430,000 mortgage, at the request of the committee, subordinated it to the $240,000. The committee actually received' the $240,000 January 9, 1928, less $20,000 to pay taxes that had accrued on the land and the expense of recording the mortgage and subordination agreement.
The committee gave no notice, either to the insurance company or to Callahan, of an intention to repudiate the transaction or to claim that they had been induced to enter into it by fraud, until the cross-complaint was filed in this cause on January 24, 1930, and the Hughes Investment Company remained in possession of the lands until their conveyance to Douglas as agent for the committee, and the committee then continued in possession of the property, receiving the rents and profits until a receiver was appointed in this cause on the 9th of November, 1929. It is to foreclose this $240,000 mortgage that this suit was brought.
The questions on this appeal may be grouped as follows: (1) Whether the findings of the master were reviewable by the District Court, and, if so, to what extent; (2) whether the Missouri State Life Insurance Company, by fraudulent misrepresentation or concealment through Callahan and Mann, or either, mislead the committee as to the condition and value of farm lands; and (3) whether the appellants by their acts have waived their right to sue for. damages for fraud and deceit, or are es-topped so to do.
The contention of appellants that the findings of the master were not reviewable by the lower court was, we think, disposed of adversely to the appellants by this court on the former appeal. Roosevelt v. Missouri State Life Insurance Co., 70 F.(2d) 939.
Equity Rule 61% (28 USCA following section 723) specifically provides that: “The report of the master shall be treated as presumptively correct, but shall be subject to review by the court, and the court may adopt the same, or may modify or reject the same in whole or in part when the court in the exercise of its judgment is fully satisfied that error has been committed.”
True, the rule provides that when a case or any issue is referred by consent, and the intention is plainly expressed in the consent order that the submission to the master is as an arbitrator, the court may review the same only in accordance with the principle covering a review of an award by an arbitrator; otherwise, the report of the master is not conclusive, but only advisory, and is subject to review by the court, and the court may either approve or disapprove, modify, or recommit the report, or it may do as it did in this' case, disaffirm the report, act upon the evidence reported, and enter its own findings. Boesch v. Graff, 133 U. S. 697, 10 S. Ct. 378, 33 L. Ed. 787; Denver v. Denver Union Water Co., 246 U. S. 178, 38 S. Ct. 278, 62 L. Ed. 649; Armstrong v. Lone Star Refining Co. (C. C. A. 8) 20 F.(2d) 625; Parker v. Interstate Trust & Banking Co. (C. C. A. 5) 56 F.(2d) 792; Roosevelt v. Missouri State Life Ins. Co. (C. C. A. 8) 70 F.(2d) 939; Holt Mfg. Co. v. C. L. Best Gas Traction Co. (D. C.) 245 F. 354; Edwards Co. v. La Dow (C. C. A. 6) 230 F. 378; Stokes v. Williams (C. C. A. 3) 226 F. 148; Byers v. Federal Land Co. (C. C. A. 8) 3 F.(2d) 9; Simkins Federal Practice § 843.
The report of the master, when submitted to the trial court, is clothed with the presumption of correctness, and if it is approved by the trial court it is clothed with the presumption of correctness in the appellate court, but where the trial court, notwithstanding this presumption, has disapproved and set aside the report, then it cannot be said that the presumption of correctness is attributable to it in the appellate court. That presumption is overcome by the adverse finding of the lower court, and we must accept the findings of the court as presumptively correct, although the presumption is doubtless weakened by the fact that its findings are in conflict with those made by the master. Where, as in the instant case, findings of the master and the court conflict, it is the duty of this court to examine the evidence and determine the facts.
While this suit was commenced as one in equity, the issues involved are those arising on the cross-complaint of the appellants, by which they pleaded an action at law to recover damages for fraud and deceit. To entitle a party to recover in such an action, there must have been actual fraud resulting in damages. As said by us in Boatmen’s Nat. Co. v. Elkins & Co., 63 F.(2d) 214, 216: “To sustain an action for damages for fraud and deceit, the representation made (1) must have been as to material facts; (2) it must have been knowingly false; (3) it must have been made with the intention that it should be acted upon by the person to whom made; (4) that person must have been ignorant of its falsity; (5) he must have relied on its truth; and (6) the false representation must have been the proximate cause of the injury or damage.”
The elements and characteristics of such an action are well stated by this court in an opinion by Judge Hook in Kimber v. Young, 137 F. 744, 747, where it is, among other things, said: “To afford sufficient basis for an action of deceit the representation must have been of material facts, and must have had such relation to the transaction in hand as to operate as an inducement to the action or omission of the complaining party (Slaughter’s Adm’r v. Gerson, 13 Wall. 379, 383, 20 L. Ed. 627; Smith v. Chadwick, 20 Ch. Div. 27); and it must have been relied on by him (Marshall v. Hubbard, 117 U. S. 415, 6 S. Ct. 806, 29 L. Ed. 919; Ming v. Woolfolk, 116 U. S. 599, 6 St. Ct. 489, 29 L. Ed. 740; Stratton’s Independence v. Dines [C. C.] 126 F. 968, 977). The basis of the action of deceit is the actual fraud of defendant — his moral delinquency; atid therefore his knowledge of the falsity of the representation, or that which in law is equivalent thereto, must be averred and proved. There is much confusion in the authorities upon this subject, due in part to the erroneous assumption that that which is merely evidence of fraud is equivalent to the ultimate fact which it tends to prove, and also to the assumption, likewise erroneous, that an untrue representation which would be sufficient to support a suit in equity for a rescission of a contract is equally as available in an action of deceit. * * * The false representation relied on as the ground of an action of deceit must have accomplished the purpose of deception. Ming v. Woolfolk, supra. The plaintiff must have used due diligence to discover for himself the truth or falsity of the representation (Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203), or the relations of the parties to each other or the location or character of the subject-matter of the transaction must have been such as to excuse investigation and to justify his reliance upon the assertion of the other. Again, the representation must be of existing and ascertainable facts, and not mere promissory statements based upon general knowledge, information, and judgment. Sawyer v. Prickett, 19 Wall. 146, 22 L. Ed. 105; Patent Title Co. v. Stratton (C. C.) 89 F. 174, 178. It was said in Union Pacific Ry. Co. v. Barnes [(C. C. A.) 64 F. 80], supra: ‘An action for false and fraudulent representations can never be maintained upon a promise or a prophecy.’ Nor is mere expression of opinion sufficient, though it be false, and be expressed in strong and positive language. Johansson v. Stephanson, 154 U. S. 625, 14 S. Ct. 1180, 23 L. Ed. 1009. Positive statements as to value are generally mere expressions of opinion and as such cannot support an action of deceit. Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166; Blease v. Garlington, 92 U. S. 1, 9, 23 L. Ed. 521.”
See, also, United States v. Beebe, 180 U. S. 343, 21 S. Ct. 371, 45 L. Ed. 563; Southern Development Co. v. Silva, 125 U. S. 247, 8 S. Ct. 881, 31 L. Ed. 678; Woods-Faulkner & Co. v. Michelson (C. C. A. 8) 63 F.(2d) 569; Boatmen’s Nat. Co. v. Elkins & Co. (C. C. A. 8) 63 F.(2d) 214; Gleason v. Thaw (C. C. A. 2) 234 F. 570; Kell v. Trenchard (C. C. A. 4) 142 F. 16.
The charge of fraud is based upon certain alleged misrepresentations by Callahan as to the nature, character, condition, value, and income of these Arkansas farm lands at the conference held at the New York hotel on the evening of September 8, 1927, and in the District Court of New York on the following day. At the conference, Mr. Mann was present, and it is claimed that his silence was such as to imply an acquiescence of the Missouri State Life Insurance Company, which he represented, in the statements made by Callahan. It is important, in considering this testimony, to note the relation of the parties. The bondholders’ committee consisted of intelligent business men, who, in all they did, acted under advice of counsel. At this conference, they were represented by members of the committee and by at least three attorneys, and at the court hearing which followed, they were represented by eminent counsel. One of their attorneys had, prior to that time, been driven 150 miles through the territory where a considerable portion of the lands were located, and the committee had a local attorney at Memphis, Tenn. There were no trust relations between the parties, and they were at liberty to deal with each other at arms length. At the conference there was apparently a great deal of general discussion as to the land values. There was before the committee at this conference the report of the insurance company’s inspectors on each of these tracts of land on which the insurance company had originally made a loan. This report contained an appraisal of each tract of land. There was before the committee evidence as to the amount of the loan originally made by the insurance company, the fact that the mortgage had been foreclosed, and the amount at which the property had been bid in by the insurance company. These report's of the inspectors classified the lands embodied in each tract and separately placed a valuation on each class of land. There were before the committee letters from certain real estate firms in Memphis, Tenn., giving an estimate of certain classes of land in the counties in which these properties were located, but giving no information as to these' particular lands, and Mr. Roosevelt expressed the view that these real estate firms were reliable, and he seems to have had some acquaintance with certain of their members.
At that conference, Callahan specifically said that he had never seen nor inspected any of the lands in question. Mr. Foster, one of the committee’s attorneys who attended the conference, in his testimony relative to this conference, says: “After a long conference preliminary, we suggested that Mr. Callahan put in writing his statement as to the value of these lands in order that we could have something for the consideration of the committee and of the court, in definite form.”
In referring to the letter, this witness further says: “In preparing the figures, the analysis of the various tracts was obtained from the appraisal reports, with the exception of the foreclosure costs, which was merely a statement by the Missouri* Life Insurance Company. Mr. Callahan then reduced the computation of the foreclosure costs, divided by the number of acres, to an average of slightly under $42.50. Then 'Mr. Callahan computed with my assistance the average value of cleared! and uncleared land in the counties of Crittenden, Jefferson, Mississippi and Poinsett,, taking the average values given by Bolton-. Smith and Marx & Bensdoi;f, and then applying these average figures for cleared! and uncleared land to the amount of cleared or cultivated land on the one hand, and to the timbered and uncleared land, and obtained a value on this average valuation* basis of $577,923.75, before making any allowance for the value of the improvements. He then took the aggregate value-of the improvements as shown on the appraisal reports, $99,750.00, and added that figure to the total value of the lands without improvements, making a total valuation of $677,673.75.”
The committee, therefore, knew exactly how the letter was prepared, and had in-their hands the data from which it was-compiled, and apparently accepted it as a. summary in written, definite form of his. statements as to the value of the lands. It was not only prepared at the suggestion of' the committee for that purpose, but was. used by the committee and the court as. representing all that Callahan knew with reference to these properties. We have already adverted to the fact that Callahan at no time represented that he had any personal knowledge as to the character, condition, or value of these lands, and in his letter, after stating that he had not personally inspected any of the lands, he refers to the-appraisals as made by the inspectors of the insurance company in the following language : “I feel that it is fair to assume that the Insurance Company employed competent inspectors and that the appraisals made by said inspectors, which I herewith submit, furnish the best available data as. to the values as of the date of the inspection.”
This is in the nature of an argument,, and it refers to values, not at the time of the conference, but at the time the appraisals were made, which was in 1918 to-1920. The evidence indicates that either at the conference, or on the following day, he said that the lands throughout the delta were all alike and equally suitable for cotton farming. He said that the lands were.overflowed to a minor extent by a levee break. He also gave it as his opinion that the fair rental was $10 per acre for cotton lands. At the hearing before Judge Mack, Mr. Roosevelt, with his three attorneys, appeared, as did also Mr. Callahan. At this hearing, Judge Mack pointed out that there were no figures as to the present values of the lands, and that there were opinions only as to the general average of land in the counties. Callahan said he was making a statement from his knowledge concerning conditions in and about Memphis, his home, and that the lands involved were across the river; that he was not a land man, but a lawyer, but he was a large landowner and felt that he was qualified to say something at least concerning the prospects or future of farm lands in his section. He pointed out that during the World War, cotton planters were prosperous, and that after the war cotton sold for less than it cost to produce it; that planters lost their lands, but cotton had gone up very rapidly, and he expressed the opinion that there would be no telling where the end would be. He said: “Income from those 5600 acres of land should be between $15.00 and $10.00 per acre. I am speaking of usual conditions in the cotton belt, and the land rent usually runs from $10.00 to $15.00 per acre.”
Here the court interrupted: “How much of that land is cotton land?” Mr. Callahan replied-: “How much of it is cultivated?” This interrogation seems to have been addressed to Mr. Foster, one of the committee’s attorneys. At any rate, Mr. Foster spoke up and said, “5,500 acres.” Mr. Callahan then said his client (Mrs. Rees) reasonably should expect an income of from fifty to fifty-five thousand dollars from these lands. The court then said that the taxes and interest would amount to $36,000. Callahan said: “That would leave, your Honor, if my guess is right, that would leave some twenty or twenty-five thousand dollars, or fifteen or twenty thousand dollars of it to the present holders, with the prospect of things getting better, and how they can get worse I cannot imagine, and that would leave a margin above that.”
The court asked about the levee break, and Callahan said that his understanding, from reliable sources, was that only one plantation was affected by the overflow. The court said: “You do not know what the effect on that particular parcel is, of the break?”
Callahan answered: “No, sir, your Hon- or, I do not; but I do know this, I know that plantations thirteen miles away from the bad break at Stops Landing, that the effect was beneficial in that it made the land more fertile and much better for planting purposes, and my own plantation was improved by the deposit of new soil or silt, as they call it on the plantation. Now, that is all I can say on that subject.”
Referring to the statements from the Memphis real estate agents, the court said: “But none of these appraisals refer specifically to this land, they refer to the general average of lands in those counties.”
Callahan then said: “Well, for six hundred miles, your Honor, — of course this is just my statement — but for six hundred miles the delta looks all alike, one plantation looks just like another, and the man who gives you his guess knows about the general values of the delta, and those appraisals cover almost completely the value of the particular plantations as if he had made a specific appraisal of these particular plantations.”
In this entire recital, there cannot be said to be a statement of any present material fact. As to rental values generally, what Callahan said was less than an opinion — it was prophecy, and known to be such at the time the statements were made. In this connection he used the words “prospects or future.” As to the statement with reference to the overflow of the lands, he disclaimed any knowledge,' but stated the effect of overflow on lands some 13 miles distant from the break, and there is no suggestion of any proof that either of these statements were false. As to his general statement that for 600 miles the delta looks all alike, it is observed that he says: “Of course, this is just my statement.” Mr. Foster had viewed these lands on his 150-mile drive, but, in addition to all this, the statement bears on its face evidence that it was given as a general statement, which was not intended to apply to individual peculiar differences in the various tracts. In fact, the court and the committee were advised by the very letter which Callahan had prepared, in which he summarized the appraisal reports of the insurance company, that these lands were not all alike. These appraisals showed valuation on cultivated lands from $75 to $150 per acre, and on timber land from $20 to $60 per.acre. The letter which was read at the hearing showed that there were not only timber lands and cultivated lands, but partly cleared tracts, roughly cleared tracts, cleared land, some “slashed” land, partly marshy; 760 acres in Poinsett county was described as being “unimproved, valued a,t $60.00 per acre in timber.” Then, too, the letter from Bolton Smith & Co. showed that the average value of cultivated land in Jefferson county runs from $75 to $100 an acre, while cut-over lands in Jefferson county runs from $75 to $100 an acre; that cut-over lands and the woods lands would run from $10 to $25 an acre
Question: What is the second general issue in the case, other than economic activity and regulation - commercial disputes - debt collection, disputes over loans?
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_state
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52
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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".
GOVERNMENT OF the VIRGIN ISLANDS v. Patricia ROMAIN, Appellant.
No. 78-1868.
United States Court of Appeals, Third Circuit.
Argued April 23, 1979.
Decided June 18, 1979.
Judith L. Bourne, Asst. Federal Public Defender, Christiansted, St. Croix, U. S. V. I., for appellant.
Mark L. Milligan, Asst. U. S. Atty., Chris-tiansted, St. Croix, V. I., for appellee.
Before ROSENN, MARIS and HUNTER, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The appellant, Patricia Romain, an inmate of the Golden Grove Adult Correctional Facility, St. Croix, was found guilty by a jury of assaulting a matron of the facility, Myrtle Michael, in violation of 14 V.I.C. § 296(3). This appeal is taken from the district court’s order of June 14, 1978, sentencing the appellant to serve a term of eighteen months in prison, the term to run concurrently with the sentence the appellant is already serving.
The appellant contends on appeal (1) that the evidence was insufficient to support the district court’s denial of the appellant’s motion for a judgment of acquittal or to support the jury’s verdict, (2) that the verdict represented an impermissible coerced compromise resulting from the trial court’s insistence that the jurors continue their deliberations after they had reported themselves deadlocked and (3) that the appellant was denied a fair trial due to the government’s failure, through negligence, to produce two defense witnesses. We have considered these contentions and find them to be wholly without merit. However, our examination of the record reveals an error which we are obliged to notice and which requires reversal of the conviction and a new trial, namely, the request of the trial judge to the jury that he be informed of the jury’s numerical division on the question of the defendant’s guilt or innocence.
The trial took place on May 30, 1978. The following day, after the jury had been deliberating for several hours, the foreman of the jury notified the trial judge that the jury was unable to arrive at a decision. The trial judge then sent a note to the foreman asking for advice on how the jury was divided and requesting that the numbers be inserted in two spaces provided at the bottom of the note. The note was returned to the trial judge with the spaces filled in indicating a division of ten to two.
The Supreme Court has held that the trial judge’s inquiry of a jury which is unable to reach agreement as to its numerical division is reversible error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). The Court reasoned as follows:
We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to .the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.
272 U.S. at 450, 47 S.Ct. at 135-36.
We are not here concerned with the question whether the rule stated in Bras-field v. United States is one of constitutional dimension and, therefore, applicable to state as well as federal courts as held in State v. Aragon, 89 N.M. 91, 547 P.2d 574, 580 (Ct.App.1976), and People v. Wilson, 390 Mich. 689, 213 N.W.2d 193 (1973). But see Ellis v. Reed, 596 F.2d 1195 (4th Cir. 1979), contra. For it is, at the least, a rule adopted by the Supreme Court under its supervisory power over the courts of the United States and, thus, applicable to the courts of the Third Federal Judicial Circuit, of which the District Court of the Virgin Islands is one. See Government of Virgin Islands v. Solis, 4 V.I. 615, 619-620, 334 F.2d 517, 519-520 (3d Cir. 1964).
The failure of counsel to bring this error to the court’s attention does not preclude its correction on appeal since the error, once committed, cannot be cured. Brasfield v. United States, supra, 272 U.S. at 450, 47 S.Ct. 135.
The judgment of the district court will be reversed and the cause remanded for a new trial.
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_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".
Margaret DeKORWIN, etc., Plaintiff, v. The FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants; The FIRST NATIONAL BANK OF CHICAGO, as Trustee, etc., Petitioner, v. Marie Louise BRILL, Respondent-Appellee, and Frank Bloch et al., Respondents-Appellants.
No. 13992.
United States Court of Appeals Seventh Circuit.
June 6, 1963
Bruce J. McWhirter, Roland D. Whitman, Clarence H. Ross, Chicago, 111., Ross, Hardies & O’Keefe (formerly Ross, McGowan, Hardies & O’Keefe), Chicago, 111., of counsel, for appellants.
Charles Rivers Aiken, Richard F. Watt, Chicago, 111., for appellee.
Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Frank Bloch, David Tonkin, Corrado J. DeSantis, Angela DeSantis, Jerome D. Kass, Lita A. Kass, Carl H. Kline and Edyth R. Levy, respondents, have appealed from a decree of the district court, entered September 26, 1962. The court ordered that, there being no reason for delay, the decree be entered as a final judgment.
The court's decree was based upon the report of a master in chancery, which included findings of fact and conclusions of law.
This appeal concerns the validity and the nature of two assignments, made by Marie Louise Brill (then known as Marie Louis Tonella), of Santa Monica, California, appellee, on December 29, 1949 to Leonard P. Levy, hereinafter referred to as Levy, of Philadelphia, Pennsylvania, of parts of her 1/isth share of the right, title and interest in and to the income and principal of the estate of Otto Young, deceased, payable at the death of Marie Julia Pratt out of the principal of the trust created by the will and codicil of said Otto Young, to the extent of $250,000 as to exhibit MAR-B and $100,000 as to exhibit MAR-C. Both assignments were executed by Brill in Santa Monica, California.
Each respondent claims a portion of the interest transferred under these assignments, by virtue of subassignments made to them by Levy.
From the evidence heard, the master in chancery determined that Brill’s %sth share of the trust estate, when ascertained and ready for distribution, if she survived Mrs. Pratt, her mother, would approximate $1,400,000.
Brill’s mother stopped her allowance in 1949 and she became destitute. She was referred to Samuel Cohen, described on his letterhead as the owner of “Allied Investment & Discount Corporation, in Philadelphia, Pa.” Its business is trust estate financing and general financing. After making an assignment to Cohen of a $250,000 remainder interest, for which Cohen paid her $45,000, Brill made several similar assignments to Levy, including said MAR-B and MAR-C.
In this case Brill’s counsel contends that Levy was guilty of fraud in procuring the execution of the assignments. The master did find fraud. However, we deem it unnecessary to decide whether fraud was proved. We note from the master’s report that when the assignments were executed by her, in California, her attorney was present. The district court did not expressly find that fraud existed, although it approved the master’s report and adopted its findings and conclusions.
1. In this case the district court has jurisdiction by virtue of the diversity of citizenship of the parties. DeKorwin v. First National Bank of Chicago, 7 Cir., 156 F.2d 858, 861 (1946).
2. The validity and the nature of the two assignments in question are governed by the law where they were made. DeKorwin v. First National Bank, 7 Cir., 275 F.2d 755, 760. That is California. In the courts of California the common law of England has been declared to be the rule of decision. In re Elizalde’s Estate, 182 Cal. 427, 188 P. 560, 562 (1920).
3. The master in chancery held the assignments invalid as sales under the Uniform Sales Act in effect in California, but the district court expressly refrained from basing its decree on that act. We prefer to take the position that the assignments were made to secure a loan, as also held by the master and the district court.
Our position is supported by the fact that Levy required Brill to furnish him with insurance upon her life. The insurance requirement by Levy on the life of Brill is substantially relevant to the test of whether the transaction was a loan or a sale. As was said in Provident Life & Trust Co. v. Fletcher, S.D.New York (1916), 237 F. 104, 108, by Judge Learned Hand:
“ * * * the first question of law which arises is whether the transaction, without the security of any life insurance policies, was usurious. * * * The general test is whether the principal is put at any genuine hazard. * * * under all the possible circumstances, the principal must be repaid.”
At 109 of 237 F., he added,
“ * * * In all these cases, either in one way or another, the payment of principal was secured beyond any but colorable hazard.”
This case was affirmed in 2 Cir., 258 F. 583 (1919). See also DeKorwin v. First National Bank, supra, 275 F.2d 761.
In citing both Provident Life and DeKorwin, we are referring to the common law as announced by New York courts.
Levy advanced $75,000 to her in return for assurance that he would collect $350,000 in the future, the actual date being dependent upon the length of life of the life tenant, Mrs. Pratt, who was seventy-two years old when Levy advanced the money in December, 1949. We thus see that Levy advanced Brill money, and Brill, using her remainder interest in the Otto Young Trust, undertook to secure for him a refund in kind, and, to guard against her own death before that of her mother, Levy required her to furnish him adequate life insurance at her own expense.
We have carefully examined the evidence in the record and find that it proves clearly that Levy, before he would enter into the transactions in question with Brill, insisted that she at her expense make this provision to protect him against the possible termination of her remainder interest by her death prior to that of her mother. Thus, he not only used the cost of the insurance in reducing the amount which he paid her for the assignments, but she was prevailed upon to make an initial payment of $2,000 as premium on the insurance.
The facts unerringly point to the conclusion that this transaction is a loan.
Respondents in their brief admit that, under California law, the determination of whether a transaction is a sale or a loan follows the same principle as we announced in In re Oakes, 267 F.2d 516 at 518 (1959), where we said:
“ * * * If it is a sale, we are not concerned with the question of interest, and if it is a loan then we are required to determine whether the interest charged is usurious.”
Respondents have cited several California decisions, only one of which involves facts having any similarity to those in the case at bar. It is Martyn v. Leslie, 137 Cal.App.2d 41, 290 P.2d 58 (1955). We shall not encumber this opinion with a recital of the complicated transactions involved in that case. Suffice it to say that no agreement to procure life insurance or any other kind of insurance was there involved. The word “insured” crept into the opinion, 290 P.2d at 66, where the court said:
“It is true that by means of the ‘United Purchase Agreement’ defendants insured themselves not only against loss, but of a profit. However, they did not thereby exact any payment from the plaintiffs. The plaintiffs were under no obligation to exercise their option, and there was no evidence that they were in anywise obligated to reimburse King or United if they purchased the 15 per cent interest. The evidence is all to the contrary.” (Italics supplied.)
By way of contrast, in the case at bar the record is replete with evidence, including exhibits, answers of Levy to interrogatories, and his own testimony, as well as that of Brill, that the insurance on Brill’s life, at her expense, was exacted by Levy, without which the transaction involving the assignments would not have been consummated by Levy. Martyn v. Leslie is not inconsistent with the result which we reach in this ease.
4. Respondents point out that the maximum interest rate allowed by law in Illinois is 7%, Ill.Rev.Stat. ch. 74, §§ 4, 6, 8 (1961), while in California it is 10%, West’s Cal. Const. Art. 20, § 22. They then contend that, inasmuch as the assignments were executed in California, which described Brill as “of Santa Monica, California” and that the corpus of the trust and the place of its administration are in Illinois, the resolution of the claim of usury requires a preliminary determination as to the applicable conflict of laws principles of the forum state, Illinois.
Brill agrees that the conflicts rule of Illinois controls.
In George v. Haas, 311 Ill. 382, 143 N.E. 54, plaintiff, George, sued in the municipal court of Chicago for the balance due on a promissory note which drew interest at 10%. Defendant Haas contended that no interest could be recovered because the rate of interest provided for was usurious. From a judgment for both principal and interest defendant appealed and the Appellate Court reversed. On further appeal, the Illinois Supreme Court stated, 311 Ill. at 385, 143 N.E.2d at 55:
“ * * * If a contract is executed in one state, to be performed in another state or country, the law of the place where the contract is to be performed will determine its validity and the nature and extent of the obligation. If a contract is made in one state, to be performed in another, and the states are governed by different laws, the law of the place where the contract is to be performed will prevail over the law where the contract was entered into, and it will be enforced under the law of the place of performance. Parties are presumed to contract with reference to the law of the state where their contract is to be performed, and to be governed by such law, rather than the law of the state where the contract was entered into. This rule has been declared and applied in practically every variety of contract, including bills of exchange, promissory notes, and checks drawn in another state payable in this. * * ff
While respondents rely on Walker v. Lovitt, 250 Ill. 543, 95 N.E. 631, and Oakes v. Chicago Fire Brick Co., 388 Ill. 474, 58 N.E.2d 460, we believe that the reliance is not well-founded. In Walker, the court, 250 Ill. at 546, 95 N.E. at 622, applied the principle that when a contract for the payment of money is silent on the subject, the place of payment is presumed to be the place of making. Subsequently the same court in Oakes explained Walker, 388 Ill. at 477, 58 N.E.2d at 462:
“ * * * In the later case of Walker v. Lovitt, 250 Ill. 543, 95 N.E. 631, it was as definitely stated that the rule is well settled that the validity, construction and obligation of a contract must be determined by the law of the place where it is made or is to be performed. Clearly, that rule was applicable in that case because the note involved was executed and, by presumption, was payable in the same state. No question of conflict of laws could, therefore, be directly involved.” (Italics supplied.)
In Oakes, the court approved and followed its holding in the George case, supra.
We hold that the Illinois law on usury applies in this case.
5. By its final decree of September 26, 1962, the district court ordered that respondents, having received the sum of 42½¢ of each dollar in the face amount of their subassignments, were not entitled to any further payments out of Brill’s share in the Otto Young Trust Estate, “the amounts these subassignees have received being sufficient fully to satisfy any and all valid claims by them arising from the assignments of December 29, 1949, and their subassignments thereunder. These subassignees’ claims to additional sums or amounts based on the specified assignments and sub-assignments are without merit and are denied, and they are dismissed for want of equity.”
An order of March 10, 1961, reflecting a partial settlement agreement between respondents and Brill, provided for the payment to each respondent, out of a deposit held by the court clerk, of a sum equal to 42½% of the principal amount of each respondent’s claim, without prejudice to the rights of either party. Levy testified that a price of approximately 44¢ on the dollar for a share in the assignments in question was a fair price for subassignees to pay in January 1950 (when the subassignments were made by Levy). Respondents in their brief recognize that testimony and do not dispute it. The inference that they paid such an amount is irresistible.
We are satisfied, therefore, that, from substantial evidence in the record, together with the reasonable inferences to be drawn therefrom, the 42½¢ referred to in the district court’s final decree finds almost precise support in the evidence and that the slight, apparent variance in amount does not justify our disturbing the decree upon that ground alone.
For these reasons, the decree from which this appeal has been taken is affirmed.
Decree affirmed.
. The First National Bank of Chicago is joined as trustee thereof.
. The assignee of Brill’s brother, Graveraet Young Kaufman, in a similar transaction with assignee Rosen, in New York City, was more fortunate in his dealing because he avoided paying the premium on the insurance taken out on his life for the benefit of Rosen. DeKorwin v. First National Bank, supra.
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
TELE-COMMUNICATIONS OF KEY WEST, INC., Appellant v. UNITED STATES of America et al.
No. 84-5008.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 30, 1984.
Decided April 2, 1985.
Jay L. Cohen, Washington, D.C., with whom Fred Israel, Washington, D.C., was on the brief, for appellant. Alan R. Plutzik, Washington, D.C., entered an appearance for appellant.
Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lam-berth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before WRIGHT and MIKVA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
This is an appeal from a District Court order dismissing, for failure to state a claim, a complaint filed by Tele-Communications of Key West, Inc. (TCI), a purveyor of cable television service. The issue presented is whether the dismissal was, in fact, proper under Federal Rule of Civil Procedure 12(b)(6). As discussed below, we hold that the District Court erroneously dismissed TCI’s First and Fifth Amendment claims but properly dismissed TCI’s statutory antitrust claim. Consequently, we affirm in part and reverse and remand in part.
I. Background
The undisputed facts underlying this case are as follows. For ten years, from 1974 through 1983, TCI (and its predecessor-in-interest) provided cable television service to Homestead Air Force Base in Florida. In June of 1983, however, the Air Force requested bids for cable television service to the base from a variety of parties. After receiving bids, the Air Force awarded an exclusive service contract to another company and ordered TCI to remove its cables and other equipment from the base’s cable television right-of-way by the end of December 31, 1983.
On December 13, 1983, TCI filed an action in the District Court here requesting injunctive and declaratory relief. See Complaint for Declaratory and Injunctive Relief for Injury to First Amendment Rights, Fifth Amendment Rights and Antitrust Violations, Appendix (App.) at B. Specifically, TGI requested an order requiring the Air Force to allow TCI to leave its cable equipment where it was; such an order would have enabled TCI to continue service to the base. See Complaint, supra, at 9. TCI also requested that the court issue a declaratory judgment to the effect that any attempt on the part of the Air Force to prevent TCI from continuing to serve those on the base who desired such service would violate TCI’s First and Fifth Amendment rights and the Sherman Antitrust Act. See id. at 8-9.
The same day TCI also filed a motion for a preliminary injunction, contending that it would be irreparably harmed if it was not granted relief by December 31, 1983. See Motion for Preliminary Injunction. The next day, December 14, 1983, a hearing on this motion was set for December 27, 1983.
On December 23, 1983, the Air Force filed a motion to dismiss TCI’s entire complaint for failure to state a claim or, in the alternative, for summary judgment. TCI, on December 27, 1983, then filed an opposition to the motion to dismiss and a motion to strike the Air Force’s motion for summary judgment or, in the alternative, for a discovery and briefing schedule for cross-motions for summary judgment. In these responses TCI asserted that the standard for dismissal had not been met and that the standard and procedures for summary judgment had not been complied with. See Opposition to Defendants’ Motion to Dismiss Under Rule 12(b)(6); Plaintiff’s Motion and Memorandum of Points and Authorities to Strike Defendants’ Motion for Summary Judgment or, in the Alternative, for a Discovery and Briefing Schedule for Cross-Motions for Summary Judgment.
On December 27,1983, the District Court heard oral argument on TCI’s motion for a preliminary injunction and on the Air Force’s motion to dismiss. At that time the court observed that it would not dispose of the case on summary judgment because to do so would be unfair. See Excerpt of Proceedings at 3, App.L. The next day, December 28, 1983, the District Court issued an order and memorandum opinion dismissing the complaint and denying the request for a preliminary injunction. See Tele-Communications of Key West, Inc. v. United States, 580 F.Supp. 11 (D.D.C.1983).
TCI now appeals from the dismissal of its claims for permanent injunctive and declaratory relief, asserting that that dismissal was erroneous under the Rule 12 standards or as a summary judgment. The Air Force, on the contrary, defends the District Court’s decision as procedurally proper and substantively correct. After determining the correct standard of review and evaluating the propriety of the District Court’s decision, we will examine the District Court’s disposition of each of TCI’s claims.
II. The Standard for Our Review of the District Court’s Decision
TCI’s first contention on appeal is that reversal is required because the District Court erroneously considered materials outside the pleadings in considering the motion to dismiss. The Air Force does not disagree with the proposition that the District Court had such external materials before it at the time it was contemplating the motion to dismiss; the Air Force explains this phenomenon by noting that TCI’s request for a preliminary injunction was before the court at the same time and that the Air Force presented extra-pleading materials in opposing that motion. See brief for appellees at 5 n. 3. The Air Force apparently contends, however, that the District Court did in fact, in its review of the motion to dismiss, take all the facts alleged in TCI’s complaint as true. See id. at 5. Based on this interpretation of the District Court’s decision, the Air Force disagrees with TCI’s contention that reversal is mandated. The Air Force also contends in the alternative that if the District Court did consider materials outside of TCI’s complaint, the District Court’s decision should be affirmed as a summary judgment. See id. at 5 n. 3.
We conclude that, in the circumstances of this case, the dismissal cannot properly be treated as a summary judgment, even if materials outside of TCI’s complaint were considered by the District Court. We also conclude, however, that although consideration of external materials is improper under a Rule 12(b)(6) motion to dismiss, reversal based on such consideration alone would serve no useful purpose. Where such consideration has occurred, rather, normal 12(b)(6) review will be in order.
A. Potential for Reviewing the District Court Decision as a Summary Judgment
The normal course of action when materials outside the complaint are considered is for a nominal motion to dismiss to be treated as a motion for summary judgment. As Rule 12(b) states, “If, on a [Rule 12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” See also Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972) (per curiam), Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 595 F.2d 711, 719 n. 41 (D.C.Cir.1978); Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 949 (D.C.Cir.1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976).
There are constraints on a court’s ability to thus transform a motion to dismiss, however. Specifically, Rule 12(b) provides further that, if a motion to dismiss is converted to a motion for summary judgment, “all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” See also Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982). Under Rule 56 such materials include affidavits and documentary evidence that would show that a genuine issue of material fact existed. Rule 56 contains a similar but more explicit constraint: “The motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing [on the motion].” Rule 56(c).
Thus a reviewing court should not automatically treat a dismissal where external materials were not excluded as a summary judgment, although such treatment may be the most common result of such a situation. Rather, the reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.
Here, treatment of the dismissal as a summary judgment would not be appropriate. The motion was served on TCI on December 23, 1983, and argument was heard on December 27, 1983 — a mere four days later. This scheduling complies with neither the explicit 10-day requirement of Rule 56(c) nor the reasonable-period-for-response requirement of Rule 12(b). (The four-day period, as TCI notes in its brief, spanned a weekend and included Christmas and Christmas Eve.) Consequently, the motion cannot properly be recast as a motion for summary judgment, and the District Court’s decision must stand or fall as a pure Rule 12(b)(6) dismissal.
B. Review of the District Court Decision as a Dismissal under Rule 12(b)(6)
As recently reaffirmed by this court, “Dismissal for failure to state a claim for relief is proper only when ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ All factual doubts must be resolved and all inferences made in favor of the plaintiff[ ].” Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C.Cir. 1984) (en banc) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (emphasis added by the Ramirez court; footnotes omitted)). Further, as implied by the summary judgment discussion above, a Rule 12(b)(6) disposition must be made on the face of the complaint alone.
Consideration of external materials, which would normally initiate conversion of the motion to one for summary judgment, cannot properly take place under a dismissal for failure to state a claim. This limitation cannot be avoided simply because the party against whom the dismissal was granted desired an expeditious disposition of a concurrent motion for a preliminary injunction. Such reasoning would allow circumvention of the Rule 12/Rule 56 constraints whenever a claim was joined with a request for preliminary relief. This is not a result allowable under the Federal Rules.
As noted above, TCI contends that any action by the District Court that was inconsistent with the Rule 12 requirements makes that court’s dismissal automatically reversible. Thus TCI apparently would have us reverse and remand if the District Court failed to take the facts as alleged in TCI’s complaint and considered materials outside of its pleading. We do not believe that this course would serve the interests of justice or of judicial economy. Although it is clearly improper for a District Court to fail to comply with the technical and substantive requirements of the applicable federal rules, we do not see what purpose would be served by remanding a case to the District Court for a purely legal determination that we are fully competent to make ourselves. We note that this is proper only where no factual determinations need be made, that is, where the question is entirely one of law. Such is the case with a motion to dismiss for failure to state a claim. Consequently, where we determine that the District Court has.improperly failed to follow the strictures of Rule 12, we will determine whether the dismissal was appropriate in any case under Rule 12 as properly applied rather than remand for such a determination in the District Court.
In reality, therefore, our review in a case in which the District Court improperly considered materials outside of the complaint is similar to normal review of Rule 12(b)(6) dismissals: For this court to affirm such a dismissal, it must be self-evident from the face of the complaint, resolving all doubts and drawing all inferences in favor of the plaintiff, that the plaintiff is not entitled to any relief. Our review will differ only in that we must be especially careful to scrupulously avoid making factual assumptions which appear reasonable or even obvious from the record but which cannot properly be drawn from the plaintiff’s complaint. With this in mind, we turn to the specific claims raised by TCI and dismissed by the District Court.
III. Review of the Dismissal of TCI’s Claims
A. First Amendment Claim
In its complaint TCI alleged that “defendants have dedicated certain rights-of-way, poles, support structures and land for use in the provision of cable television services and programming to the servicemen and their families residing at Homestead Air Force Base. Those facilities are essential to the conduct of a cable television enterprise at Homestead Air Force Base.” Complaint, supra, 11 8, App. B. TCI further alleged that it was in the business of providing cable television service and that the defendants, through a solicitation process, had determined that TCI could no longer operate on the base, that is, use the facilities essential to operating on the base. See id. at 1T1f 2, 13-14, 17-19. TCI also alleged that “[t]here are no legal or practical reasons why two companies cannot compete directly to provide cable television services to customers at Homestead Air Force Base.” Id. at 1120. Finally, TCI alleged that, given these facts, the Air Force’s planned exclusion of TCI from the base violated TCI’s First Amendment right to disseminate “inter alia, news, entertainment and information to residents of Homestead Air Force Base * * Id. at 1123.
In comparison with TCI’s factual allegations, the District Court, in its memorandum opinion accompanying its dismissal of TCI’s claim, noted that “[pjlaintiff seeks access to a military installation dedicated to military use.” 580 F.Supp. at 14. The District Court also stated that “granting access to multiple cable television companies would involve significant burdens on the military installation and its mission, and would negate legitimate advantages the Air Force enjoys as a result of limiting access to a single such cable television firm.” Id. (The District Court noted in a footnote that it was obliged to consider the effects of multiple cable companies rather than two because eight companies had bid for the contract. Id. n. 2.) The District Court went on to explicate precisely what those advantages enjoyed by the Air Force were: “In the Air Force’s view, permitting multiple cable operators onto the base rather than soliciting competitive bids for the rights to an exclusive franchise would also raise costs to individual subscribers, thus implicating the military’s interest in the morale of those in its service. It is apparent, then, that the government’s restriction on access to the base is grounded on legitimate and rational military objectives.” Id. Using these factual assumptions, the District Court concluded that, although TCI does “enjoy[] the protections of the First Amendment,” id. at 13, “[ijnasmuch as the challenged denial of access involves a forum traditionally not open to public communication, rationally furthers a legitimate government interest, and is content neutral, it does not violate plaintiff’s First Amendment rights.” Id. at 15.
The facts relied upon by the District Court in reaching this conclusion, however, appear nowhere in TCI’s complaint. In fact, they are exactly the opposite factual assumptions from those a court would make if it, as required, took the assertions in the complaint as given and then resolved all factual doubts and inferences in favor of the pleader. TCI alleged that the rights-of-way necessary to conduct cable television services had been dedicated to such use; the District Court found that the entire military installation was dedicated to military use (presumably with no exceptions). TCI alleged that no legal or practical burdens would accrue from two cable television companies competing and in no way indicated that more than two companies might end up competing; the District Court assumed that eight companies might compete and that this would constitute a significant burden. Thus the District Court’s factual assumptions cannot serve as the basis for an affirmable Rule 12(b)(6) dismissal of TCI’s First Amendment claim.
Thus we must consider whether, applying the correct standard and using TCI’s factual allegations only, TCI’s complaint did in fact state a First Amendment claim. First, we must decide the question whether TCI’s enterprise is protected by the First Amendment at all. If it is, we must then consider whether TCI has stated a valid First Amendment claim, taking as true the factual allegations in its complaint and applying the applicable law.
The District Court found that, under this court’s decision in Home Box Office, Inc. v. FCC, 567 F.2d 9, 43-51 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977), TCI’s activity of providing cable television service was entitled to some First Amendment protection. See 580 F.Supp. at 13. With this step of the District Court’s analysis, we agree entirely. See also Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1404 (9th Cir.1985); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir.1982); Community Communications Co. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981), cert. dismissed, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1054 & n. 70 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Whether or not TCI produces any original programming of its own, its activities of transmitting and packaging programming mandate that it receive First Amendment protection. See Omega Satellite Products, supra, 694 F.2d at 127; Weaver v. Jordan, 64 Cal.2d 235, 49 Cal. Rptr. 537, 411 P.2d 289, cert. denied, 385 U.S. 844, 87 S.Ct. 49, 17 L.Ed.2d 75 (1966); cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (applying First Amendment to sale and distribution of publications). Thus we turn to the subsequent question whether TCI has adequately alleged that its First Amendment rights were violated in the instant situation.
The next step, therefore, is to determine whether, under the applicable First Amendment law, the particular factual allegations made by TCI state a viable claim. This determination self-evidently depends upon the contours of the applicable First Amendment law. Unfortunately, describing the contours of that law is difficult because of a lack of direct precedent on the question.
As noted by the parties, however, there is a substantial body of Supreme Court case law that confronts the general problem of allowing access to government-owned property for the purpose of exercising First Amendment rights; this is the body of'cases that comprise'the public forum doctrine jurisprudence. The public forum docixinfí, as described by these cases, defines situations in which the government cannot close government-owned property to parties who desire to use that property as a forum for exercising their First Amendment rights. Specifically, these cases appear to provide for three categories of government-owned property — two types of public forums and one “nonforum” category. See generally Perry Education Ass ’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-956, 74 L.Ed.2d 794 (1983) (summarizing the three categories discussed below).
First, property that historically has been both open to the public and available to anyone for use as a forum for the exercise of the First Amendment right of free speech constitutes an unconditional public forum. Such forums include facilities like streets and parks. See, e.g., United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (public sidewalks). Second, property that has not been traditionally open for speech but that has been opened by the government as a forum for speech, often for a particular type of speech, also constitutes a public forum. Such property as municipal theaters, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), and school classrooms that are held open for student use, see Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), falls into this second category of public forums. See also Lebron v. WMATA, 749 F.2d 893 (D.C.Cir.1984) (subway display space). In contrast, property that has been neither historically open to the public nor specifically opened by the government for use as a forum for speech does not constitute a public forum. Property such as military bases with restricted access, see Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), and intra-school mailboxes, see Perry, supra, has been held to fall into this third “nonforum” category.
The designation of property as a public forum or as a “nonforum” carries with it substantive effects regarding the extent and type of restrictions that the government may place upon the speech by the general public that may occur there. Government restrictions on speech in public forums of either the first or second type are subject to strict requirements. In public forums the government may restrict speech only (1) by enforcing time, place, and manner restrictions if those restrictions are content-neutral and narrowly tailored to serve a significant government interest, or (2) by imposing content-based exclusions if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. See Perry, supra, 460 U.S. at 45-46, 103 S.Ct. at 954-956. With respect to nonforums, however, the government may “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. at 46, 103 S.Ct. at 955; see also U.S. Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 131 n. 7, 101 S.Ct. 2676, 2686 n. 7, 69 L.Ed.2d 517 (1981).
Applying this public forum jurisprudence to the factual allegations in TCI’s complaint, we find that TCI has adequately alleged a First Amendment cause of action. TCI alleged in its complaint that there were no reasons, practical or legal, why two cable television companies could not simultaneously use the cable rights-of-way on Homestead Air Force Base. This allegation, if taken as true, would mean that TCI’s First Amendment rights had been infringed if the right-of-way was a public forum of either kind or if it was a nonforum: If the property is a public forum, the government may restrict speech only to serve significant (if content-neutral) or compelling (if not content-neutral) interests; if the property is a nonforum, the government may restrict speech only if such restriction is reasonable. An allegation that there were no reasons for restricting speech thus states a claim under either analysis. (It does appear, however, that TCI also adequately alleged that the right-of-way was a public forum by its allegation that the Air Force had dedicated the right-of-way for cable television use.) Thus we hold that TCI did state a First Amendment claim upon which relief could be granted. Consequently, we reverse and remand to the District Court.
Because of the relative novelty of TCI’s claim, we add an observation on the effect of our holding. We note first that two of the three circuits that have previously considered the issue of cable television’s right of access to government-owned property for the purpose of communicating to viewers have not used the public forum doctrine in their analysis. These two circuits, rather, seemed instead simply to balance the competing interests involved. See Community Communications, supra, 660 F.2d at 1375-1380 (balancing the competing interests of the cable television company’s desire to communicate and the municipality’s need to preserve certain public resources that might be burdened by the provision of cable television service); see also Omega Satellite Products, supra, 694 F.2d at 127-128 (balancing interests of cable company with burden on public resources and assumed fact that cable television represents a natural monopoly). The third circuit to address this issue did note the potential relevance of the public forum doctrine but did not hold that the public forum doctrine governed without alteration in this context; it seemed to use the doctrine merely as additional support for a conclusion already reached on other grounds. See Preferred Communications, Inc., supra, 754 F.2d at 1407-1409.
We note also that the Supreme Court has often stated that “[ejach medium of expression * * * must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975). See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (plurality opinion); FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3039, 57 L.Ed.2d 1073 (1978); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). Thus, although historical First Amendment jurisprudence signals the analytic approach to be used in determining the First Amendment protection due a new medium, a court describing that protection must be careful to adapt that jurisprudence to the new context.
In light of these observations, we wish to make clear that our holding that TCI has stated a First Amendment claim under public forum jurisprudence is not a holding that a different and perhaps more appropriate First Amendment analysis may not properly be developed during the proceedings on remand.
B. Fifth Amendment Claim
The same allegations in TCI’s complaint that preclude a Rule 12(b)(6) dismissal of its First Amendment claim also preclude such a dismissal of its Fifth Amendment claim. As noted above, the District Court found that the Air Force had legitimate government interests in denying access to TCI. The District Court went on to note that “[n]o due process violation has occurred since plaintiff’s First Amendment rights have not been infringed and there is no dispute over the conduct of the bid process itself.” 580 F.Supp. at 15. Having determined that TCI’s complaint did in fact state a First Amendment claim, we must now reexamine the dismissal of the Fifth Amendment claim as well, bearing in mind that none of the District Court’s subsidiary factual conclusions can be adopted unless they are clearly alleged in the complaint.
From the complaint we glean three factual assumptions that must be made in this Rule 12(b)(6) determination: First, that the Air Force had dedicated the necessary property to cable television transmission; second, that TCI had been denied access to this property; and third, that there were no reasons for not allowing two cable companies to use that property. See Complaint, supra, at if 118, 17-18, 20. Using these factual allegations, we now apply Fifth Amendment law to determine whether a claim was stated by TCI.
The Due Process Clause of the Fifth Amendment has been held to include an equal protection provision. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Under equal protection doctrine, differential treatment of parties is constitutional only if adequately related to a sufficient governmental interest. Ordinarily, the test is that it must be rationally related to a legitimate state interest. Where the differential treatment burdens the exercise of a fundamental right such as the First Amendment’s freedom of speech, however, equal protection demands more. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972) (“discriminations among pickets must be tailored to serve a substantial governmental interest”); see also Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274 (1972).
As noted above, TCI’s complaint clearly states that there are no legal or practical reasons why two cable television companies cannot compete directly to service Homestead Air Force Base. This allegation suffices to withstand a motion to dismiss for failure to state a claim, whether or not TCI’s First Amendment rights may have been infringed. For even if TCI’s First Amendment rights have not been burdened, the restriction on TCI may violate the equal protection requirement if it is not rationally related to a legitimate governmental interest. See Perry, supra, 460 U.S. at 54, 103 S.Ct. at 959. TCI’s allegation states that the government has no reasons, legitimate or compelling, for excluding one television station and not another. Consequently, although the ultimate merit of such a claim may be extremely doubtful unless TCI’s First Amendment rights have in fact been burdened, dismissal is not appropriate. The complaint states a claim and, regardless of the likelihood of success, if the complaint states a claim it must withstand the Rule 12(b)(6) motion to dismiss. Thus the District Court’s dismissal of TCI’s Fifth Amendment claim was incorrect and must be reversed.
TCI’s brief also presents an argument that centers around the statutory easement provision which authorizes the type of easement at issue here to be granted by the Air Force. See 16 U.S.C. § 420 (1982); 43 U.S.C. § 961 (1982). Although the content of this argument is not entirely clear, it appears to break down into one purely statutory claim — that the Air Force, by granting an easement to one party, granted an easement to any party desiring one — and one statutorily-rooted constitutional claim — that this statute created a property right in TCI that was then unconstitutionally taken by the Air Force. Although these arguments were not specifically raised in TCI’s complaint (the complaint contains no reference to the statutory provisions in question or to any easement as such), the District Court, apparently responding to TCI’s raising of it in a brief filed after its complaint, made specific findings on the issues. The District Court found that (1) the statute did not automatically provide that, where an easement is granted to one party for a particular purpose, any other party is also automatically entitled to an easement for that purpose, and (2) TCI’s easement, effective until 11:59 P.M. on December 31, 1983, expired automatically at that time so that TCI had no continuing property interest that might be unlawfully abrogated by the Air Force. See 580 F.Supp. at 15.
With respect to the first finding, we believe the District Court correctly decided the issue. (Consequently, we need not decide whether the complaint adequately alleged it.) The statute here specifically states that the governmental body with jurisdiction over the lands in question “is authorized and empowered * * * to grant an easement for rights-of-way * * * to any citizen, association, or corporation of the United States * * The plain language of this statute indicates that the government body can grant the easement to one party if it wishes. It does not follow that once an easement is granted any party may use that easement.
The District Court’s handling of the second question is more troublesome. The District Court found that, as the Air Force alleged, the easement given to TCI simply expired at the end of 1983. This, however, is a factual assumption which was not alleged in the complaint. What TCI alleged in its complaint was that the Air Force had dedicated certain property to transmission of cable television and that TCI was not being allowed to use that property. The question, therefore, is whether this allegation stated a claim beyond those discussed above. We conclude that it did not. As the District Court noted, no allegations of improper bid procedures appeared in the complaint. Thus no procedural due process claim was stated. Further, no allegation appeared that TCI had a property interest in the right-of-way. Consequently, no takings claim was stated. Therefore, we find only that TCI has stated an equal protection Fifth Amendment claim.
C. Sherman Antitrust Act Claim
TCI, in its complaint, also alleged that the government, acting as a common agent for the service people stationed at Homestead Air Force Base, acted in such a way as to establish a monopoly in service of cable television to the base. See Complaint, supra, at f 42. TCI further alleged, however, that access was also allowed for the purpose of “furnishing * * * cable television services to Air Force facilities at Homestead Air Force Base including but not limited to the hospital and to various duty rooms, day rooms, and recreational areas.” Id. at 1113.
In its brief, TCI admits that United States governmental entities generally are exempt from the antitrust laws, but argues that this case should be distinguished because the Air Force was acting as a representative for the individual service people on the base. This argument, however, is not sufficient to build this into a viable claim, even if our holding in Sea-Land Service, Inc. v. Alaska Railroad, 659 F.2d 243, 244 (D.C.Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982) (“Congress did not place the United States or its instrumentalities under the governance of the Sherman Act”), would allow such a result. TCI itself stated in its complaint that the Air Force was also acting to ensure service to common areas. Thus it was not acting solely as a representative for the individuals on the base. In sum, the District Court was correct in dismissing TCI’s antitrust claim, and we affirm it on that point.
IV. Conclusion
The District Court’s dismissal of TCI’s First and Fifth Amendment claims is reversed and remanded. The dismissal of TCI’s antitrust claim, however, is affirmed. For clarity’s sake, we note additionally that the reversal with respect to the First and Fifth Amendment claims applies only to the District Court’s dismissal of these claims under Rule 12(b)(6): Although the District Court decision at issue here was not appropriate as a summary judgment, our decision does not preclude the possibility of summary judgment on
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_genresp2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
ASSOCIATED GENERAL CONTRACTORS OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants. v. Alan ALTSHULER et al., Defendants-Appellees.
No. 73-1250.
United States Court of Appeals, First Circuit.
Heard Oct. 2, 1973.
Decided Nov. 30, 1973.
Certiorari Denied April 22, 1974.
See 94 S.Ct. 1971.
James J. O’Leary, Boston, Mass., with whom Joseph P. Rooney, Ansel B. Chaplin, Gaston, Snow, Motley & Holt, Boston, Mass., and James E. Flynn, Jr., Cambridge, Mass., were on brief, for plaintiff s-appellants.
Dennis L. Ditelberg, Asst. Atty. Gen., and Gershon M. Ratner, Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John F. Houton, Asst. Atty. Gen., Michael J. Hoare, Sp. Asst. Atty. Gen., Benjamin Jones, and Robert City, Boston, Mass., were on brief, for defendants-appellees.
Robert T. Moore, Atty., Dept, of Justice, with whom William J. Kilberg, Sol. of Labor, J. Stanley Pottinger, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., and David L. Rose, Atty., Dept, of Justice, were on brief, for The Secretary of Labor of The United States, amicus curiae.
Jerry Cohen, Morris Shubow, John Henn, John Reinstein, Matthew Fein-berg, Charles A. Levin, Mark A. Michelson, and Stephen R. Moore on brief for Civil Liberties Union and American Jewish Congress, New England Region, amici curiae.
Before COFFIN, Chief Judge, MOORE and McENTEE, Circuit Judges.
Of the Second Circuit, sitting by designation.
COFFIN, Chief Judge.
This is an appeal from a judgment sustaining, as constitutional and in accord with state law, certain contract requirements imposed by the Commonwealth of Massachusetts upon contractors engaged in publicly funded construction work at Boston State College. Appellants are thirteen individual construction companies, now engaged in construction of public buildings for the Commonwealth, and a membership corporation comprised of one hundred forty-five general contracting firms which together perform approximately eighty per cent of all construction in the Commonwealth. Each of the appellants was a prospective bidder for the Boston State College contract.
In relevant part, § IB of the contract requires that the contractor
“... maintain on his project, which is located in an area in which thére are high concentrations of minority group persons, a not less than twenty percent ratio of minority employee man hours to total employee man hours in each job category ft
Section V, ¶ 3, of the contract provides, however, that the contractor must hire only “competent” workers. The Secretary of Transportation and Construction for the Commonwealth, who is charged with enforcing the contract provisions, interprets this to mean that § IB requires the hiring of only “qualified” workers. The district court has interpreted the contract in the same way.
The contract also requires that the contractor engage in special referral procedures as well as traditional referral methods, cooperate with a Liaison Committee composed of various representatives from community groups, make weekly compliance reports to the Liaison Committee and the Massachusetts Commission Against Discrimination (M.C. A.D.), and permit the M.C.A.D. access to books, records, and accounts containing employment information.
The contract further stipulates that the M.C.A.D. will investigate any alleged non-compliance with the contract terms and notify the contractor of both its findings and recommendations as to how he might comply with the terms. If the contractor fails to accept the recommendations and in addition the M.C.A.D. determines that the contractor has not taken “every possible measure to achieve compliance”, the M.C.A.D. will report its findings to the Bureau of Construction and recommend that specific sanctions be imposed. Before imposing any sanctions, however, pursuant to the Commonwealth’s Administrative Procedures Act, M.G.L.A. c. 30A §§ 10, 11, and according to the Secretary of Transportation and Construction, the Bureau will provide the contractor with notice of the findings and a hearing in which he may challenge them.
Because the federal government pays a portion of the construction costs of the Boston State project, contractors are also required to accept federal bid conditions, promulgated by the United States Secretary of Labor pursuant to § 201 of Executive Order No. 11246 (30 F.R. 12319, as amended, 32 F.R. 14303; 34 F.R. 12985) and 41 C.F.R. 60. The specific contractual elements of the federal bid conditions are derived from the Boston Area Construction Program (the Boston Plan), a “hometown” equal employment opportunity plan prepared by the local construction industry in cooperation with the Department of Labor. Unlike the Commonwealth’s § IB, the federal Boston Plan sets area-wide percentage objectives for minority hiring within each trade, rather than percentage goals for each project. Under the Boston Plan the responsibility for fulfilling the objectives does not lie with the individual contractor; he merely agrees to hire whatever minority workers are referred to him by the trades unions in the course of the plan’s operation. Moreover, while § IB requires that contractors take “every possible measure” to comply with the contract terms, the Boston Plan necessitates merely a “good faith” effort by the contractor. A fourth point of difference between the two plans is that the Boston Plan places the burden of proving noncompliance upon the government agency, while § IB places the burden of proving compliance, once non-compliance has been alleged, upon the contractor himself.
Appellants challenge the constitutionality of § IB of the contract requirements imposed by the Commonwealth on three grounds: They contend, first, that' § IB varies so significantly from the federal bid conditions of the Boston Plan that it violates the Supremacy Clause of Article VI; second, that § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment; and finally, that § IB permits the imposition of sanctions without proper notice or an opportunity to be heard, in violation of the Due Process clause of the Fourteenth Amendment. Appellants also contend, pursuant to the pendent jurisdiction of this court, that § IB involves the M.C.A.D. in activities which go beyond the scope of its enabling legislation.
I
In order to deal with appellants’ first contention, that § IB violates the Supremacy Clause because the federal Boston Plan must necessarily preempt § IB, it is necessary to set out the context in which this case arises.
We note at the outset that the construction industry has been particularly slow, throughout the nation, to open itself to racial minorities. For this reason, in 1967 the federal government launched pilot plans in several cities designed to increase minority employment on federally funded construction projects by way of “affirmative action” programs. Executive Order 11246, under which the Secretary of Labor was authorized to promulgate such programs, required that contractors “take affirmative action to ensure that applicants are employed... without regard to race.... ” Affirmative action itself was defined as “specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and time tables ”
After several different affirmative action programs had been implemented, with varying degrees of success, in 1970 the government permitted particular communities to develop their own “hometown” affirmative action programs. If the Secretary of Labor approved the plans, the plans would receive federal funding, and local contractors who complied with them would thereby comply with the mandate of Executive Order 11246.
The Boston Plan emerged from negotiations between representatives. of buildings trades unions, contractors, and minority communities in the Boston area, and was approved by the Secretary of Labor in the fall of 1970. Although it fulfilled its first year goal of training and placing three hundred sixty minority workers, relationships with the minority community representatives deteriorated to the extent that the Department of Labor withheld second year funding until a revised plan could be negotiated. The new plan, beginning operations in January, 1972, did not have the participation of representatives of Boston’s minority communities. In addition, although put into effect two years after the original Boston Plan had commenced, the revised plan retained the same minority employment goal as that of the original plan.
At about the same time as the revised Boston Plan was put into effect, the Commonwealth began an inquiry of its own into the need for a separate state affirmative action program. The inquiry revealed that despite the existence of the federal Boston Plan, minority membership in all of the nineteen participating unions amounted to less than four per cent of union membership, while minorities comprised approximately twenty-three per cent of the population of Boston. Since virtually all of the contractors who engage in state funded projects rely upon these predominantly white unions for workers, minority employment in the construction trades continued to be extremely low. The Commonwealth also determined that the Boston Plan had no provision for the collection of reliable data on the actual number of hours worked by minority workers placed on construction jobs. Finally, in the opinion of the Commonwealth’s Office of Transportation and Construction, the Boston Plan lacked adequate enforcement machinery. On the basis of these findings the Commonwealth concluded that the federal Boston Plan had not gone far enough, and that a separate, state affirmative action program was required for construction projects in which state funds were committed.
The contract for the construction of Boston State College is the first to incorporate both the Commonwealth’s own § IB bid conditions, promulgated under authority of the Governor’s Executive Order No. 74, and the federal Boston Plan bid conditions. The Assistant Secretary of Transportation and Construction for the Commonwealth has determined that there exist adequate journeymen, apprentices, and trainees within Boston’s minority community to provide at least twenty per cent of the work force for the project, as well as for other projects anticipated in the area. It is estimated that the total work force required for the Boston State Project will vary between forty-seven and one hundred fifty persons; contractors on the project must therefore take “every possible measure” to employ between ten and thirty qualified minority workers.
Appellants contend that because the Commonwealth’s § IB affirmative action program places different requirements upon contractors than those of the Boston Plan, the two are in conflict, and that the state plan must therefore be declared invalid. Appellants point out, most particularly, that under § IB, contractors must bear the burden of showing that they have taken “every possible measure” to comply, whereas under the Boston Plan, they must have made merely a “good faith effort” and the burden of showing non-compliance rests with the government agency. They also stress that the record keeping and referral requirements of § IB are more onerous than those of the Boston Plan.
In deciding whether state regulations should be invalidated because they conflict with federal law, courts have tended to examine both the possibility of broad conflict in “purposes and objectives” between the two schemes, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1940), and the likelihood of specific conflict in the implementation of the two programs.
Clearly, the broad purposes which lay behind the federal Boston Plan and the Commonwealth’s § IB are congruent. Affirmative action, defined in the President’s Executive Order as “. steps to guarantee equal employment. including... the development of specific goals and time tables. ” has the same meaning as affirmative action as defined in the Governor’s Executive Order: “... positive and aggressive measures to insure equal opportunity.” Both plans envisage minority hiring goals as a means of achieving equal opportunity.
Nothing in the President’s Executive Order requires that affirmative action taken under the Order be uniform throughout the country, nor does it necessitate that the federal government be the source for every program. An important aspect of federal implementation is the development of “hometown” plans, conceived and developed by local contractors, unions, and minority representatives. And in at least one instance the federal government has relied upon a plan originally conceived by state officials for their own state funded contracts. See Illinois Builders Ass’n v. Ogilvie, 327 F.Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972).
Nor is there any indication that the federal government has intended to preempt this field. Federal preemption should not be presumed, absent “a clear manifestation of intention” to preempt the field. Schwartz v. Texas, 344 U.S. 199, 202-203, 73 S.Ct. 232, 97 L.Ed. 231 (1952); see also New York State Department of Social Service v. Dublino, 405 U.S. 413, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). The President’s Executive Order merely requires that contractors take some “affirmative action” and directs the Secretary of Labor to “use his best efforts” through “state and local agencies” as well as federal agencies. The Secretary of Labor has stated, as amicus curiae, that the federal program is not meant to preempt state programs such as the Commonwealth’s § IB. And congressional policy in this area, as expressed in Title VII of the Civil Rights Act of 1964, the statute most closely analogous to the President’s Executive Order, is clearly one of encouraging state cooperation and initiative in remedying racial discrimination. Title VII, 42 U.S.C. § 2000h-4 expressly disclaims any intent to preempt state action. See also Voutsis v. Union Carbide, 452 F.2d 889 (2d Cir. 1971), cert, denied, 406 U. S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1971).
Even if there is no conflict between the purposes and objectives of the two schemes, the state plan might still be invalid if there is a showing of “such actual conflict between the two schemes of regulation that both cannot stand in the same area....” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); see also Perez v. Campbell, 402 U.S. 637, 649-653, 91 S. Ct. 1704, 29 L.Ed.2d 233 (1971). While we acknowledge that § IB may be more demanding than the Boston Plan, and may well involve higher administrative costs, there is no reason to suppose that contractors could not comply with both at the same time. By complying with § IB’s minority hiring goals on projects funded by both the state and the federal government, contractors would also comply with the Boston Plan’s goals. The reporting requirements are different for the two plans, but this merely necessitates the filing of two different sets of reports.
The only place where the two plans might be found slightly incompatible is in the area of trade union referrals. Recognizing that union reluctance to admit minorities to apprenticeship programs has been one primary reason for the small percentage of minorities in the construction trades, the Boston Plan focusses upon encouraging areawide minority recruitment into the unions, and therefore does not alter the patterns of contractor reliance upon the unions for referrals. The Commonwealth’s § IB, however, facilitates referrals from sources other than the unions by providing alternative mechanisms for recruiting minority workers.
We think, however, that there is little likelihood that § IB would discourage union initiative in training and recruiting minorities. The Commonwealth’s program will operate on a small scale, only within neighborhoods with a high minority population; the contractors for the Boston College project are required to employ approximately thirty minority workers. The federal Boston Plan is designed to train and place three hundred sixty minority workers each year drawn from all over the state. Therefore, despite the Commonwealth’s program, buildings trades unions will be obligated to continue their efforts at recruiting minority workers and referring them to contractors. Furthermore, the Commonwealth’s program does not prohibit union referrals. It merely provides other sources for referrals. Thus, § IB might actually induce a stepped-up program of union recruitment if the unions are desirous of maintaining contractor reliance upon union referrals.
We conclude, therefore, that § IB presents no challenge to the Supremacy Clause.
II
Appellant’s second contention, that the Commonwealth’s § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment, presents a more difficult issue, the implications of which stretch far beyond this particular dispute.
The first Justice Harlan’s much quoted observation that “the Constitution [is colorblind]... [and] does not. permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights”, Plessy v. Ferguson, 163 U.S. 537, 554, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (dissenting opinion) has come to represent a long-term goal. It is by now well understood, however, that our society cannot be completely colorblind in the short term if we are to have a colorblind society in the long term. After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed. Discrimination has a way of perpetuating itself, albeit unintentionally, because the resulting inequalities make new opportunities less accessible. Preferential treatment is one partial prescription to remedy our society’s most intransigent and deeply rooted inequalities.
Intentional, official recognition of race has been found necessary to achieve fair and equal opportunity in the selection of grand juries, Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); tenants for public housing, Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968); Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736 (N.D. Ill. 1969); school administrators, Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); and children who are to attend a specific public school, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
The intentional, official recognition of race in the selection of union members or construction workers has been constitutionally tested and upheld' in two contexts. The first is where courts have ordered, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), remedial action for past discrimination. In fulfilling their “duty to render a decree which will so far as possible eliminate the discriminatory effects of the past... ”, Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965), courts have ordered unions to grant immediate membership to a number of minority applicants, United States v. Wood, Wire, and Metal Lathers International Union, Local No. 46, 471 F.2d 408 (2d Cir. 1973), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); to begin an affirmative minority recruitment program, United States v. Sheet Metal Workers International Ass’n, Local No. 36, 416 F.2d 123 (8th Cir. 1969); to match normal referrals with minority referrals until a specific objective has been obtained, Heat and Frost Workers, Local 53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969); or to take on a certain number of minority apprentices for each class of workers, United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), cert, denied, 404 U. S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Courts have also ordered employers to hire minority employees up to thirty per cent of the total work force, Stamps v. Detroit Edison, 365 F.Supp. 87 (E.D. Mich. 1973); to hire one minority worker every time two white workers were hired, up to a certain number, Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); and in our own Castro v. Beecher, 459 F.2d 725 (1972), we order that black and Spanish-speaking applicants for police positions, who had failed to measure up to a constitutionally impermissible set of hiring standards, be given priority in future hiring.
The second context in which race has been recognized as a permissible criterion for employment is where courts have upheld federal affirmative action programs against challenges under the Equal Protection clause or under the anti-preference provisions of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(j). Recognizing that the discretionary power of public authorities to remedy past discrimination is even broader than that of the judicial branch, see Swann v. Charlotte-Mecklenburg, supra at 16 of 402 U.S., 91 S.Ct. 1267; cf. Katzenbach v. Morgan, 384 U.S. 641, 653, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), courts have upheld the specific percentage goals and time tables for minority hiring found in the Philadelphia Plan, Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, 311 F.Supp. 1002 (E.D. Pa. 1970), aff’d, 442 F.2d 159 (3d Cir. 1971), cert, denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971), the Cleveland Plan, Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, 908 (1969), cert, denied, 396 U.S. 1004 (1970), the Newark Plan, Joyce v. MeCrane, 320 F.Supp. 1284 (D. N.J. 1970), and the Illinois Ogilvie Plan, Southern Illinois Builders Ass’n v. Ogilvie, 327 F. Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972).
Despite ample precedent for using race as a criterion of selection where the goal is equal opportunity, we approach its use in the present case with care. This marks the first time, to our knowledge, that a court has been asked to sanction a plan for hiring a specific percentage of minority workers that requires an employer to take “every possible measure” to reach the goal on each job site, and places upon him the burden of proving compliance, under threat of serious penalties if that burden is not sustained. It is but a short step from these requirements to a demand that an employer give an absolute percentage preference to members of a racial minority, regardless of their qualifications and without consideration for their availability within the general population. The Commonwealth’s affirmative action plan forces us to address a fundamental question: are there constitutional limits to the means by which racial criteria may be used to remedy the present effects of past discrimination and achieve equal opportunity in the future?
There are good reasons why the use of racial criteria should be strictly scrutinized and given legal sanction only where a compelling need for remedial action can be shown. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (2d Cir. 1969). Government recognition and sanction of racial classifications may be inherently divisive, reinforcing prejudices, confirming perceived differences between the races, and weakening the government’s educative role on behalf of equality and neutrality. It may also have unexpected results, such as the development of indicia for placing individuals into different racial categories. Once racial classifications are imbedded in the law, their purpose may become perverted: a benign preference under certain conditions may shade into a malignant preference at other times. Moreover, a racial preference for members of one minority might result in discrimination against another minority, a higher proportion of whose members had previously enjoyed access to a certain opportunity.
In the present instance, there is no question that a compelling need exists to remedy serious racial imbalance in the construction trades, particularly in Rox-bury, Dorchester, and South End, where minorities constitute approximately forty per cent of the population, and yet only about four per cent of the membership of buildings trades unions, and where there has been a long history of racial discimination in those unions. Such an imbalance within the relatively lucrative, highly visible, and expanding construction trades undermines efforts at achieving equal opportunity elsewhere in the economy, and contributes to racial tensions.
Even where a long history of discrimination and continuing racial imbalance compels the remedial use of ¡racial criteria, however, the means chosen to implement the compelling interest should be reasonably related to the desired end. See Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, supra, 311 F.Supp. at 1011; cf. McLaughlin v. Florida, 379 U.S. 184, 193, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). A program which included unrealistic minority hiring goals might impose an unreasonable burden on the employer and upon qualified workers who were denied jobs because they were not members of the racial minority. Unrealistically high goals are likely, in addition, to forment racial tensions and to prompt employers to circumvent the rules.
A program of affirmative action might be considered to impose unrealistic and unreasonable hiring goals if it included a racial preference that could not be fulfilled, or could be fulfilled only by taking on workers who were unqualified for the trainee, apprentice; or journeyman status for which they were hired. Equal opportunity is an elusive concept, but at its core it carries the simple mandate that opportunities should be open to all on the basis of competence alone. Thus, it would be consistent with the goal of equal opportunity to give first priority to members of a minority that had previously been denied equal opportunity, if those members were otherwise as qualified as were qualified members of the majority population. In order that this special treatment be meaningful, of course, there should be equal opportunity to gain the training necessary to qualify.
While § IB says nothing about hiring “qualified” minority workers, § V, ¶ 3 of the same contract requires that the contractor hire only “competent” workers. The district court has interpreted § IB in light of § V, U 3, to require that the twenty per cent minority employees of § IB be “qualified” for the status to which they were assigned. The Commonwealth’s Secretary of Transportation and Construction, who is charged with implementing these provisions, has interpreted § IB in the same way.
Appellants maintain, however, that the goal of twenty per cent minority workers on each construction site, combined with the contractor’s burden of proving that he has taken “every possible measure to achieve compliance” with the goal, will necessarily move the contractor to hire unqualified minority workers, rather than run the risk of incurring sanctions. While we think that this is an unwarranted concern, given that the Boston State College project will require approximately thirty minority workers, we concede that, in principle, a high percentage goal for minority hiring combined with a high burden of proving compliance might create the likelihood that unqualified workers would be hired.
Despite the fact that the Secretary of Transportation and Construction alleges that the twenty per cent goal was based upon an assessment of current availability of minority journeymen, apprentices, and trainees, courts are ill equipped to judge the accuracy of such assessments. It becomes important, therefore, that affirmative action plans, such as the Commonwealth’s § IB, contain fair procedures for contractors to make a showing that insufficient qualified minority workers are available. Thus, any reasonable program designed to remedy racial imbalance must incorporate the necessary elements of due process. So long as contractors receive notice and a meaningful opportunity to challenge any allegations of non-compliance and prove that they have taken whatever efforts are required of them to comply, it is less important that a particular percentage goal might be Slightly optimistic or unrealistic, given current availability of qualified minority workers.
Appellants’ contention that § IB violates the Equal Protection clause is therefore intimately tied to their contention that § IB, in violation of thp Due Process clause, permits the imposition of sanctions without proper notice or an opportunity to be heard, an issue to which we now turn.
Ill
Appellants’ due process claim concerns § IB.2 of the contract provisions, which sanctions listed below.... [T]he Commission (M.C.A.D.) shall make a final report of non-compliance, and recommend to the Bureau [of Construction] the imposition of one or more of the sanctions listed below.... [T]he Bureau shall impose one or more of the following sanctions, as it may deem appropriate.... ”
The M.C.A.D.’s determination of noncompliance is made ex parte. Contractors are notified of the findings and given an opportunity to take specific steps which would, in the opinion of the M.C.A.D., bring them into compliance, but contractors are not permitted to challenge the findings of non-compliance at this juncture.
The Bureau of Construction is required, pursuant to the Commonwealth’s Administrative Procedure Act, M.G.L.A. c. 30A §§ 10, 11, to hold a hearing before any penalties may be imposed on the contractors for non-compliance. What is in dispute is the scope of this hearing. Appellants maintain that § IB.2 allows, at most, a challenge to the particular sanction which the M.C.A.D. has recommended, in favor of what might be contended to be a more appropriate sanction, but not a challenge to the truth of the M.C.A.D.’s basic findings of non-compliance. If appellants’ interpretation of § 1B.2 were correct, their due process claim would have some merit because contractors would be subject to serious penalties, such as debarment from participation in state contracts for three years, without having had an opportunity to contest the findings on which the imposition of the penalty was based. See Boddie v. Connecticut, 401 U.S. 371, 377-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).
We do not think, however, that § IB.2 must necessarily be interpreted to require such a narrowing of the scope of the administrative hearing. The contract states that the Bureau “shall impose” one of the sanctions only “as it may deem appropriate to attain full and effective enforcement.” It would seem perfectly consistent with this mandate for the Bureau to determine for itself that the contractor had in fact taken “every possible measure” to achieve compliance, despite the findings of the M. C.A.D. to the contrary, and that any sanction would be inappropriate. The presumption of constitutionality customarily accorded state statutes, e. g., United States v. Carolene Products, 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), would dictate that we apply this interpretation. The Supreme Judicial Court of Massachusetts has, moreover, construed certain other Commonwealth statutes, facially lacking express provisions for notice and hearing, as impliedly calling for such due process requirements. See Rohrer, Petitioner, 353 Mass. 282, 230 N.E.2d 915 (1967); O’Leary, Petitioner, 325 Mass. 179, 89 N. E.2d 769 (1950).
The Commonwealth’s Secretary of Transportation and Construction has given the foregoing interpretation to § IB.2, and has stipulated that no sanctions may be imposed against a contractor until he has had a full hearing before officials of the Bureau of Construction in which he may challenge any findings of non-compliance by the M.C. A.D. Since the Secretary is entrusted with interpretation and implementation of the contract privisions, his view is at least entitled to “respectful consideration”, Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935). We see no reason not to accept his interpretation in this case, Law Students Research Council v. Wadmond, 401 U.S. 154, 162, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), and indeed condition our holding on the consistent application of this interpretation. We conclude, therefore, that § IB so construed does not violate the Due Process clause of the Fourteenth Amendment.
Since contractors are provided with notice and a full opportunity to contest allegations of non-compliance, they may thereby show that insufficient qualified minority workers were available. Therefore, in light of our preceding analysis, we find that § IB does not violate the Equal Protection clause of the Fourteenth Amendment.
IV
Appellants’ final contention, which comes within the compass of our pendent jurisdiction, is that the Commonwealth’s § IB program involves the M.C.A.D. in activities that are prohibited by the anti-preference clause of M.G. L. A. c. 151B, § 4. This clause provides, in relevant part that “... nothing contained in this chapter or in any rule or regulation issued by the Commission [M.C.A.D.] shall be interpreted as requiring any employer, employment agency or labor organization to grant preferential treatment to any individual or to any group because of the race. of such individual or group.... ”
The anti-preference clause has not been interpreted
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America v. Walter E. ASHE, Appellant. UNITED STATES of America v. Walter E. ASHE, Appellant.
Nos. 71-1033, 71-1509.
United States Court of Appeals, District of Columbia Circuit.
Argued April 12, 1972.
Decided March 26, 1973.
Michael Nussbaum, Washington, D. C. (appointed by this Court) for appellant. James P. Davenport, Washington, D. C., also entered an appearance for appellant, in No. 71-1033.
Herbert M. Silverberg, Washington, D. C. (appointed by this court) for appellant in No. 71-1509.
Guy H. Cunningham, III, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. John D. Aldock, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee.
Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
LEVENTHAL, Circuit Judge:
This is the third time that we have been asked to review some phase of the Government’s case against Walter Ashe. In this latest chapter of the proceedings, Ashe was found not guilty by reason of insanity of a violation of 22 D.C. Code § 2801, carnal knowledge of a female child under sixteen years of age. In 71-1033, Ashe appeals the finding of guilt of the commission of the act, which is implicit in an acquittal by reason of insanity. In 71-1509, he appeals from the determination, following a Bolton hearing for his continued custody on the basis of dangerousness because of mental illness.
I.
The indictment charges that on October 14, 1967, Walter Ashe had sexual relations with his daughter Mary, then age ten. The Government’s evidence consisted of the testimony of Mary Ashe; the corroborative evidence of Mary’s then eight or nine year old brother Walter, Jr. and of their mother Mrs. Ashe, both of whom were witnesses to the incident; the testimony of Thomas Ashe, a still-younger brother, who was not a witness to the event itself; and the expert testimony of a pediatrician who examined Mary after the incident. On May 9, 1968, Ashe was brought to trial. Mrs. Ashe invoked her marital privilege. Mary and Walter, Jr. were questioned in order to judge their competency to give evidence. Walter, Jr.’s responses were unclear, and he eventually became unresponsive. At length, defense moved for a mistrial in order that a more thorough examination of Ashe’s capacity to stand trial be undertaken. This motion was granted by District Judge Smith.
Ashe was determined fit to stand trial and on October 2, 1968, a second trial was begun before District Judge Green. At this trial, the Government rested its case substantially upon the evidence of Mary and Walter, Jr. Mary’s testimony was elicited only with the greatest of difficulty. The first time she took the stand, she did not give damaging testimony. She was excused and later recalled and eventually, after she refreshed her recollection by reading over the statement she had made to the police, her testimony did establish a corpus delicti. The Government sought corroboration from Walter, Jr.; the child’s response to the questions he was asked were badly garbled and generally difficult to understand. Walter, Jr. did not seem able to place himself at a particular place at a particular time, and his testimony taken as a whole did not specifically corroborate the incident charged in the indictment.
The District Court, sum sponte and over the objection of Ashe, raised the question of insanity, and Dr. Mauris Platkin, a St. Elizabeths psychiatrist, testified that Ashe had a personality structure which was not inconsistent with committing deviant sexual acts. (Tr. p. 544: “. . . it is not at all improbable that he could have committed this kind of act. It certainly relates to this condition.”) The jury found Ashe guilty, rejecting the insanity issue. Appeal was taken to this court, and on May 12, 1970, we vacated the conviction and remanded. United States v. Ashe, 138 U.S.App.D.C. 356, 427 F.2d 626 (1970). We noted that the Government’s case on corroboration was very thin, and that the real corroboration had come from Dr. Platkin. This we held to be unduly prejudicial. “[T]he judge interposing an insanity defense did have the obligation to establish bifurcated trial or some other protective procedure to avoid prejudice to the defendant from the court’s insistence of airing a defense interposed contrary to the defendant’s will.”
On August 20, 1970, the Government began civil commitment proceedings against Ashe under 21 D.C.Code § 541 et seq., but the Commission on Mental Health found that Ashe was not dangerous because of mental illness.
A third trial was consequently begun on November 30, 1970. The proceedings were bifurcated, ánd the Government’s case developed much more smoothly than it had in the trial of October, 1968. Mary Ashe’s testimony was direct and to the point, Walter, Jr. coherently corroborated her story, and Thomas Ashe also gave evidence which was generally corroborative as well. After hearing the evidence, the jury brought in a verdict of guilty, whereupon the second stage of the trial — dealing with the insanity issue — was begun. Only one witness was presented, Dr. Robert Robertson of St. Elizabeths. After Dr. Robertson was heard, the jury retired and quickly brought back a verdict of not guilty by reason of insanity. Ashe was committed to St. Elizabeths for observation, and on February 16, 1971, a Bolton hearing was begun before Judge Green, testing the question of whether continued retention in custody should be ordered due to Ashe’s dangerousness because of mental illness. The Bolton jury found, after hearing almost a dozen witnesses, that Ashe was dangerous due to his mental illness. Judge Green thereupon remanded him to the custody of St. Elizabeths until such time as he was no longer dangerous.
Ashe petitioned for habeas corpus, claiming that his detention for observation at St. Elizabeths was longer than that authorized by Judge Green and that he had not been accorded treatment nor the “least-restrictive alternative” in his disposition. This petition was summarily dismissed by the District Court. We vacated the dismissal in Ashe v. Robinson, 146 U.S.App.D.C. 220, 450 F.2d 681 (1971), and remanded for further proceedings. Nothing has been done about this remand to date, and counsel informed us at oral argument that no further action in that matter is contemplated.
II.
The Notice of Appeal in 71-1033 was somewhat ambiguous as to what decision was being appealed from. The Government argues that this appeal is evidently from the interlocutory finding of “guilty” by the jury, but that a “guilty” verdict in a bifurcated proceeding, if followed by a verdict of not guilty by reason of insanity, is not a “final decision” within the meaning of the rule that permits appeals only from such decisions. The Government further argues that Ashe failed to file his notice of appeal within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure. The appeal was noted 13 days after the insanity verdict of the jury and several months prior to the Bolton hearing.
We disagree with the Government’s contention. We conclude that we have jurisdiction to hear the appeal, and to consider both the sufficiency of the Government’s case underlying the implicit finding of guilt and the validity of the detention order. We need not determine whether a bare verdict of not guilty by reason of insanity is “freighted with sufficiently substantial indicia of finality to support an appeal” see Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Fort, 133 U.S.App.D.C. 155, 409 F.2d 441 (1969). Certainly the court ordered Ashe’s commitment for examination based solely on the jury verdict, and this culminated in an order for continuation of commitment following a Bolton hearing. Since we have consolidated the appeal from the verdict of not guilty by reason of insanity, and the appeal 71-1509, from the order of continued commitment, we do not have to decide the technical question as to whether our consideration of the question presented derives from one appeal, or the other, or both.
III.
Appellant contends that Walter Ashe, Jr. was not a competent witness. For support, appellant cites Walter, Jr.’s performance at the voir dire before Judge Smith in the mistrial and his testimony, upon which we commented in Ashe-I, at the trial before Judge Green in 1968. In both of these instances, Walter — in startling contrast to his performance at the third trial — was almost an unreachable witness. Although it is difficult to isolate any determinative single reason therefor, it is reasonably plain that poor language skills, together with the intimidation of the courtroom and the obvious painfulness of the subject — which precipitated the dissolution of the Ashe family and the childrens’ dispersion into Junior Village and various foster homes —worked a severe inhibition on the child.
Counsel submits that our first opinion, Ashe-I, in effect held that Walter, Jr. was not competent to testify, or that at least his testimony was non-corroborative. If it was non-corroborative, then of course the Government’s proof in Ashe-I failed for want of the corroboration we require in proof of sex offenses. And if, in turn, the Government’s proof failed in Ashe-I, then the rule in our circuit is clear that another trial cannot be brought.
The Government’s response to this chain of reasoning is that even if there had been no corroboration, there was still ample evidence to convict Ashe of simple assault. We do not need to pass upon this response. We believe that Walter, Jr.’s testimony in Ashe-I was sufficient to meet the corroboration requirement. That rule must be applied in light of its purpose, to prevent fabrication of easily-fabricated crimes, and not to interpose a technical barrier that rejects a substantial showing of guilt. We attribute most of the deficiencies of Walter, Jr.’s testimony in Ashe-I to inferior language skills and emotional turmoil which have since substantially abated. The transcript from Ashe-11 certainly suggests a child functioning well within the limits of intellectual normality. We are sensitive to the point that Walter, Jr.'s testimony in Ashe-1 was weak and garbled, but we attribute the weakness to interference factors rather than to any fundamental inability to observe with accuracy. A family where a father is having indecent or incestuous traffic with his children is surely a family in turmoil. In addition to the ordinary and normal testimonial inadequacies which are a part of immaturity, the children of such families are likely to exhibit all sorts of emotional abnormalities which may often prevent their effective communication, especially in a context as intimidating as g crowded, unfamiliar courtroom. Unless we want in effect to wipe the enforcement of the carnal knowledge statute out of the incest situation, we must be prepared to accept evidence from some seriously mixed-up young witnesses, and to be flexible in assessing their competency and evidentiary sufficiency.
Our opinion in Ashe-I recognized that the Government’s case was thin, but we did not hold it legally insufficient. The thin Government evidence meant that the error of permitting Dr. Platkin’s testimony in evidence, without protecting precautions such as bifurcation having first being taken, could not be harmless. We are satisfied that the retrial cured this prejudice. The record in Ashe-I indicates that the competency determination was made in open court outside the presence of the jury. The transcript shows that the defendant was present, as is his right under the Sixth Amendment. The procedure was sound. The jury’s finding of guilt, which is a part of its total determination of not guilty by reason of insanity, is not infected by legal insufficiency or error, and will not be disturbed.
IV.
We now address the issues raised in 71-1509, which attacks certain aspects of the Bolton hearing. At the end of that hearing, the jury found that Ashe was dangerous because of mental illness and Judge Green thereupon ordered his commitment.
A. Appellant claims that the jury voir dire was not adequate for purposes of discovering whether there were some prospective jurors who, knowing that Ashe had recently been found to have committed a felonious sex crime and had been declared insane, might be prejudiced on the question of whether Ashe was now “dangerous as a result of mental illness.” Counsel submitte'd twelve questions, which are set out in footnote 2. The questions Judge Green asked were these (Tr. pp. 27, 28) :
1. Are there any of you who feel any sort of prejudice toward people who have been confined in jail, mental hospitals, Saint Elizabeths, or would this be such that it would prevent your reaching a fair decision in this case?
2. Do any of you feel that the conviction of a crime, committing an act of sex with one’s own daughter, would necessarily make one committable to a mental hospital ?
3. Do any of the members of the panel have any employment or patients or anyone in their family who has ever been employed at Saint Eliza-beths Hospital or been a patient there ?
4. Does any member of the panel have anyone in their family or have ever themselves suffered from any mental disease or defect?
5. Are there any reasons at all why any member of the panel would prefer not to sit on a case of this kind ?
Seven of the prospective jurors told the court of some misgiving they had, based on the questions asked, and six of these were, upon further questioning by the court, excused. While the questions probing the ability of the jurors to render a fair verdict might have been improved, we are satisfied that they did an adequate job of discovering possible prejudice. Certainly appellant cannot claim reversible error for the denial of the argumentative — and equally unfocused — questions requested by appellant.
B. Appellant also argues that the experts were improperly asked whether, in their opinion, Ashe was or would be dangerous. Ashe relies on our decision in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967). As counsel succinctly put it at argument, “Expert witnesses should never be allowed to speak the magic words.”
There are different vectors of considerations that culminate in a psychiatrist’s resultant conclusion as to “dangerousness,” yea or nay. Some aspects are primarily determined by his expertise, and others by his value preferences in matters involving community values where the ultimate decisions must be made by the court and jury. The same may also be said of “mental illness” as a legal concept, for this is not controlled by the medical conception. Yet it has not been suggested that a psychiatrist may not speak, in parlance that is natural and understandable, of mental illness. The possibility of confusion must be obviated by attentive explanation, sorting out of factors, and cross-examination.
The issue of “dangerousness” is different from the issue of “productivity.” Washington held that experts called to testify on the issue of insanity must not speak in terms of productivity. Our concern was against oversteering of the jury on the ultimate decision of criminal responsibility, one that “intertwine[s] moral, legal and medical judgments,” King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967). The problem of “oversteering,” identified in Washington, is not avoided completely but it is substantially diluted here, in a Bolton hearing on the issue of dangerousness. As we pointed out in Brawner a critical reason for the Washington opinion was the lack of a generally accepted meaning for the “product” term. But we specifically held that the expert could testify on the causal relationship between mental disease and the existence of substantial capacity for control at the time of the act. And so in the case at bar, where there is no use of a term like “product” that has no accepted meaning, the expert can testify on the ultimate causal issue. The jury can be expected, with reasonable confidence, to assess the concept of “dangerousness” for itself and in such a way as to reflect community values.
In a Bolton hearing, the jury is aware that the witness is not making a scientific finding as to a past fact, but is making an estimate as to the future— the kind of judgment that doubtless reflects some margin of doubt yet is part of his clinical function. Of course the judge clearly charges it is the jury’s role to make the determination. Such steering by experts as exists is due not to words and misunderstandings as to the natural tendency to be respectful of the comments of those who have given special study to a subject. It would likely persist ‘to substantially equivalent degree if the expert were merely asked to give his conclusions as to the consequences he foresaw if the individual were released to the community. The substantive criterion for committability is fixed by the statute. It uses terms and concepts that are common parlance for both experts and laymen. The jury needs whatever help the experts can provide, and that should not be cramped by interdicting the use of these terms in the testimony.
On the other hand, the jury hearing a psychiatrist’s testimony of dangerousness, should be informed of its various components: to what extent it reflects a predicting of behavior (often palpably dangerous); whether it is prediction of an occurrence of a kind of behavior that, however deviant, might be considered by the jury to lie in the realm of the private, the eccentric, or the offensive, but not the dangerous. The expert must be prepared to state the bases for his conclusion and be aware that the attorney, seeking to expose the predicate of the expert’s conclusion is not necessarily challenging his expertise within its proper realm, but may properly be seeking to ask the jury to come to a different ultimate conclusion on the basis of the community-value factor involved. Following the lead of our Brawner opinion we hold that henceforth the Washington Appendix should be used in Bolton hearings, following adjustment for the difference in issues, should be sent to the experts in advance of hearing, and should be read at least once to the jury.
C. Appellant strongly contends that Dr. Reisen should have been qualified as an expert in psychiatry and allowed to testify as such. Dr. Reisen is a physician with several years of background — both practical and academic — in psychiatry. He is not a board-certified psychiatrist or neurologist, but of all the physicians who testified, Dr. Reisen knows Ashe best. At oral argument, we were advised that Dr. Reisen is in charge of the observation ward at St. Elizabeths, and is entrusted by the Hospital with considerable unsupervised responsibility. Based on what we glean from the record and what we heard at oral argument, we conclude Dr. Reisen could have qualified as an expert in psychiatry.
We do not however find reversible error, for these reasons: First, counsel at trial did not detail the extent of the responsibility which St. Elizabeths has entrusted to Dr. Reisen. More important, Dr. Reisen was permitted to testify as a physician and to express his opinion on Ashe’s probable future dangerousness. He was not allowed to testify directly on Ashe’s mental status. But other questions, intimately related to mental status, were allowed. Specifically, he was allowed to testify about how, in his opinion, Ashe would function in the community if released from the hospital. The thrust of that question operates, in effect, in the same way as a question put in terms of mental illness and dangerousness. The witness’s projection of the individual’s functioning, in the absence of commitment, necessarily embraces an appraisal of the individual’s mental and emotional capacities and behavioral controls.
Finally, Ashe’s counsel was able to present the testimony of Dr. Paul Weis-berg, who did qualify as a psychiatric expert, that appellant was not suffering from mental illness. Dr. Weisberg’s testimony on direct was clear and unequivocal, and the skillful cross-examination by the Assistant U.S. Attorney did little to dislodge or becloud any of that testimony. Dr.. Reisen’s greater familiarity and contacts with Ashe might have given his opinion more weight with the jury. But in a context where the judge was not advised of critical aspects of Dr. Reisen’s responsibility at St. Elizabeths, and permitted Dr. Reisen to give testimony concerning the functioning of Ashe if released, we do not think the interest of justice would be served by a finding of reversible error because he did not expressly corroborate Dr. Weis-berg’s testimony on the absence of present mental illness.
D. Appellant’s last major argument challenges the “preponderance of evidence” standard which the Bolton jury was charged it must use in its findings of mental illness and dangerousness. Our opinion in United States v. Brown is the contrary.
We have considered appellant’s other arguments and find them without merit.
Affirmed.
. Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).
. Appellant’s proposed voir dire questions were:
1. The law controlling this case requires that a person be both mentally ill and likely to, injure himself or others before lie’s involuntarily confined in a mental institution.
2. Are there any of you who do not agree that there are many so called mentally ill or disturbed persons who are walking the streets, enjoying their liberty, and not harming anyone (including themselves) ?
3. Are there any of you who, after searching your feelings, feel any sort of prejudice towards people who have been confined in jail, mental hospitals — St. Elizabeths— which might render you unable to reach a fair decision in this case.
4. Are there any of you who do not agree that the burden is on the government to establish that the defendant is mentally ill and likely to injure himself and others, and the fact that he is in the courtroom today does not raise a presumption of either?
5. Are there any of you who feel that the conviction of a crime of incest, or committing an act of sex with one’s daughter, necessarily should make one committable to a mental hospital?
6. Do you jurors agree that the burden is on the government to establish in this case that as the result of a mental illness the defendant is likely to repeat the act of which he stands convicted, or commit some other dangerous act, in order to commit him to SEH?
7. Do you jurors agree that while psychiatrists may testify as to their opinion in this case, it is not binding on you and you may choose to disregard it, or weight it lightly, if your own experience and intuition and judgment lead you to another conclusion?
8. Do you jurors agree that patients at St. Elizabeths Hospital are not presumptively dangerous?
9. Do you jurors agree that mental patients — or people suffering from some mental disturbance — are not necessarily dangerous to society, or themselves, and should not necessarily be confined in mental institutions?
10. Do any of you have any mental illness in your family or among your close friends, which might prevent you from rendering a fair decision in this case?
11. Do any of you have policemen or law enforcement officers in your family?
12. Are there any reasons — perhaps reasons which you may find hard to articulate — which would make any of you uncomfortable in sitting on this kind of case and rendering a fair decision?
. J. Goldstein and J. Katz, Dangerousness and Mental Illness; Some Observations on the Decision to Release Persons Acquitted By Reason of Insanity, 70 Yale L.J. (1960) 225.
. United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972, en banc).
. See opinion at p. 38, 471 F.2d at p. 1006: “It is the responsibility of all concerned — expert, counsel and judge — to see to it that the jury in an insanity case is informed of the expert’s underlying reasons and approach, and. is not confronted with ultimate opinions on a take-it-or-leave-it basis. The Appendix to Washington is useful in this regard— assuming appropriate modification.
. 155 U.S.App.D.C.—, 478 F.2d 606 (1973).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Jesus Padilla ENRIQUEZ, Raul Franco, Appellants, v. UNITED STATES of America, Appellee.
No. 17276.
United States Court of Appeals Ninth Circuit.
Aug. 15, 1961.
David C. Marcus, Los Angeles, Cal., for appellants.
Francis C. Whelan, U.S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, Edward M. Medvene and Ernest A. Long, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG and KOELSCH, Circuit Judges.
BARNES, Circuit Judge.
Appellants were indicted in three counts (III, IV and VII) of a se.ven count indictment. Count III charged each with sale and Count IV the concealment of certain narcotics, each in violation of 21 U.S.C.A. § 174 and each occurring on August 2, 1960. Count VII charged each defendant and others with a conspiracy to sell and conceal the same narcotics in violation of 21 U.S.C.A. § 174. The central figure in all seven counts was one Rosalio Hernandez Trigueros, Jr. In the conspiracy count it alleged the object thereof was that Trigueros would arrange to transfer heroin to prospective purchasers, and that the five remaining defendants would supply Trigueros with the needed heroin. The sole overt acts charged against defendants were:
(a) that on August 2, 1960, Enriquez drove coappellant Franco to a meeting where Franco met with codefendant Diaz;
(b) that on August 2, 1960, Enriquez and Franco met with defendant. Trigueros in a certain alley.
Prior to trial, defendants Ferrell and Trigueros pleaded guilty to Count I, and defendant Diaz pleaded guilty to Count VII. All defendants went to trial on the remaining counts. Defendant Rose Montez was acquitted; appellants and the other defendants were convicted on all counts.
Jurisdiction below rests on 21 U.S.C.A. § 174; and here on 28 U.S.C. § 1291.
Victor Maria, an undercover agent for the Federal Bureau of Narcotics, purchased narcotics from defendant Trigueros on July 20, 1960. Neither appellant was involved in that sale. We now adopt the government’s factual statement of subsequent events; and we assume it represents the view most favorable to the government, which on this appeal we are required to accept as true.
“At approximately 3:35 P.M. on August 2, 1960 Agent Maria met defendant Trigueros at the intersection of Date and Maple, Montebello, California. Trigueros entered the government vehicle and in the ensuing conversation Agent Maria asked Trigueros if he was ready to deliver some heroin. Trigueros replied that he had made arrangements to get some heroin but that the source of supply would be unavailable until 4:30.
“At 4:30 P.M. on August 2, 1960, defendant Diaz joined Trigueros and Agent Maria in the government vehicle. Diaz directed Agent Maria to drive to the Samoan Bar. During the drive to the Samoan Bar, Diaz in discussing the purchase of heroin identified ‘Sleepy’ as the man they were going to see.
"Upon arrival at the Samoan Bar, Trigueros and Diaz alighted from the government vehicle and walked to the Samoan Bar; shortly thereafter said individuals returned and re-entered the government vehicle.
“Upon re-entering the government vehicle, Diaz stated that ‘he wasn’t there,’ and directed Agent Maria to proceed west on Whittier Boulevard. Diaz further stated that they were to meet ‘Sleepy’ and mentioned that ‘Sleepy’ was a cabinet maker who was remodeling a store on Whittier Boulevard. Agent Maria, following Diaz’ directions, proceeded to the fear of 4780 Whittier Boulevard, where Trigueros and Diaz left the government vehicle and entered the rear door at said address.
“Approximately thirty minutes later, Trigueros returned to the government vehicle and asked Agent Maria if he knew how to ‘cut’ heroin. Agent Maria replied affirmatively, and Trigueros stated that if he, Maria, did not cut the heroin, ‘they’ would and Agent Maria would get ‘burnt.’ Trigueros then said, ‘Wait a minute. We get it ready.’ Trigueros was then observed to return to the premises at 4780 Whittier Boulevard.
“At this time, Agent Licuanan left his point of surveillance and walked past the front of the premises at 4780 Whittier Boulevard. As Agent Licuanan passed the store he observed defendants Diaz, Trigueros, Enriquez (Sleepy Padilla) and Franco as well as Augustine Ramirez engaged in conversation in the shop.
“Thirty minutes later Trigueros and Diaz again returned to and entered the government vehicle and directed Agent Maria to the corner of Eastman and Whittier, Montebello, California, where Agent Maria was instructed by Diaz to park the government vehicle. Shortly thereafter, a 1958 Chevrolet Impala drove up and parked near the government vehicle. Agent Maria observed an unidentified male leave the Chevrolet Impala, approach the government vehicle and instructed Diaz and Trigueros that ‘the stuff is ready. Get the money and follow me.’ The Impala, with the unidentified male following on foot, proceeded to an adjacent alley.
“Agent Maria gave Trigueros $600, Trigueros left the government vehicle and disappeared into the adjacent alley; Diaz remained with Agent Maria. In the ensuing minutes Agent Maria observed the previously identified black Impala drive past the location of the government vehicle on three occasions. Trigueros was observed to be a passenger in the Impala on these occasions. Trigueros then returned to the government vehicle and handed Agent Maria a rubber contraceptive containing a brown powder, Government’s Exhibit 2-C.”
An unsuccessful attempt to purchase heroin from Trigueros on August 17, 1960, followed. A successful attempt to purchase heroin from Trigueros on August 26, 1960, followed. In neither one of these contacts was either appellant involved.
The evidence hereinabove cited discloses no involvement of either appellant, other than the statement of codefendant Diaz that “Sleepy,” (Padilla) was the source of supply, and that on August 2 1960, certain other defendants were in the presence of and had a conversation with appellants. Neither bit of evidence would, we think, be sufficient without more, to sustain the conviction of either defendant.
The government thus must rely primarily on the testimony of one Augustine Ramirez, sixteen years of age and “a third cousin” of the appellant Franco, who worked with defendants doing cabinet work at 4780 Whittier Boulevard on August 2nd, 1960, working out of a cabinet shop located at 4010 Whittier Boulevard in the County of Los Angeles, California. That testimony is as follows, as set forth by the government:
“Sometime between mid-April and July of 1960, appellant Franco and Ramirez had a conversation in Franco’s cabinet shop located at 4010 Whittier Boulevard, in which Franco told Ramirez that he would make a ‘connection’ for ‘Jess’ (Enriquez) and after that he would not handle the ‘stuff’ as it was too dangerous. (The word ‘stuff’ as understood and used by Ramirez referred to heroin.)
“Early in July, 1960, in Franco’s cabinet shop, 4010 Whittier Boulevard, Ramirez had a conversation with appellant Enriquez in appellant Franco’s presence. Enriquez told Ramirez that if any heroin came in, to put it some place in the shop. On more than one occasion, deliveries of heroin were made to the cabinet shop and Ramirez on each occasion hid the heroin in the shop. Subsequently, Franco and/or Enriquez would inquire as to whether the heroin had been delivered and following Ramirez’ ‘Yes’ answer, Enriquez would go to and pick up the heroin.
“During July and August 1960, Ramirez worked with appellants Franco and Enriquez at 4780 Whittier Boulevard making fixtures for a clothing store not yet open to the public. On occasion, during working hours, Ramirez observed persons enter the premises, speak to Franco or Enriquez and then enter the restroom with Franco or Enriquez. After a brief stay in the restroom Enriquez or Franco would emerge from the restroom and be observed in the process of putting money in their pockets. At times, after Enriquez visited the restroom, Ramirez observed Enriquez deliver money to Franco.
“On August 2, 1960, Ramirez was working at 4780 Whittier Boulevard with appellants Franco and Enriquez. During the day, Ramirez observed Arnold Diaz and Ross Trigueros enter the store and converse with Franco and Enriquez for a while. After Trigueros and Diaz left the store, Franco instructed Ramirez to accompany Enriquez to Franco’s cabinet shop at 4010 Whittier Boulevard, adjacent to Eastman and Whittier. Enriquez and Ramirez proceeded to the cabinet shop in Franco’s black 1958 Impala Chevrolet. Near the cabinet shop, on Eastman, Enriquez halted the black Chevrolet Impala and instructed Ramirez to leave the vehicle and tell Trigueros or Diaz that ‘the stuff would be ready.’ Ramirez told Trigueros that the heroin was ready and walked to the cabinet shop. Enriquez instructed Ramirez to lock up the cabinet shop. Enriquez and Trigueros who had by that time arrived at the shop, departed in Franco’s black 1958 Chevrolet Impala. Later, Franco and Enriquez returned to the cabinet shop, picked up Ramirez and took him home.
“Subsequent to action of August 2, 1960, appellants Franco and Ramirez had an argument concerning payment of approximately $135 by Franco to Ramirez. Ramirez stopped working for Franco as a result of the nonpayment of wages. Sometime thereafter, Ramirez again approached Franco requesting payment and was rebuffed.
“Following Franco’s refusal, Ramirez said, ‘Don’t be surprised if anything happens’, and Franco replied, ‘If anything happens, I am going to kill you.’
“The cross-examination elicited the fact that Ramirez was photographed and fingerprinted by Agent Maria on the date he was initially contacted. (Agent Maria testified this was done because it was apparent that Ramirez knew people in the narcotic traffic and this information would facilitate the relocation of Ramirez if needed); that Ramirez did not know he was to testify until the day before the commencement of the trial on October 25, 1960; and that Ramirez had no revenge motive for testifying in the trial.”
Appellants’ brief does not contain, as our Rule 18, 28 U.S.C., requires, a specification of the errors relied upon. This appeal, therefore, requires no action by us, save to dismiss. We dislike, as does any court, to punish clients for the failures of their attorneys. We will therefore assume the “Topical Index,” listing eight points, serves the purpose of specifying the alleged errors. They are as follows:
“Point I The defendants’ Motion for Judgment of Acquittal Should have been Granted at the Close of the Government’s Case as to Counts 3 and 4 of the Indictment.
“Point II The Defendants’ Motion for Acquittal on Count 7, ‘Conspiracy’, Should Have Been Granted
“Point III The Court erred with Respect to Defendants Franco and Enriquez in Permitting Conversations to be Admitted in Evidence Prior to the Establishment of any Prima Facie Conspiracy, and in Not Striking the Conversations With Respect to These Names (sic) Defendants and in Permitting Such Evidence to be Considered By the Jury as Binding Upon All Defendants.
“Point IV The Trial Court Committed Prejudicial Error in Permitting the Cross Examination by the Prosecutor of Defendant Enriquez.
“Point V The Prosecutor and Agents of the Narcotics Bureau were Guilty of Prejudicial Misconduct which Denied the Defendants, Franco and Enriquez, due Process of Law, in the Manner in which the testimony of Augustine Ramirez was Secured and Used in the Trial
“Point VI The trial court committed Error Prejudicial to the Rights of the Defendants in its Remarks to Defense Counsel
“Point VII The Court Erred in Denying the Motion for New Trial
“Point VIII The Appellants herein were not Accorded the Regularity and Fairness which should Characterize the Due Administration of Criminal Justice in the Federal Courts.”
We find no merit in appellants’ Points I and II, that the motions for acquittal should have been granted as to either the substantive or conspiracy counts. It is sufficient for us to state, viewing the evidence most favorably to the government, as we must, that we find sufficient questions of fact to have the issue go to the jury, and to support its verdict of conviction. The evidence of Augustine Ramirez if believed, was alone, sufficient for that purpose. We will consider the objections to the admissibility of that testimony later herein.
Appellants’ Point III is with respect to (a) permitting conversations of alleged conspirators in evidence prior to the establishment of the conspiracy, and (b) in permitting such evidence to be binding against appellants Franco and Enriquez, and not striking it.
This again is primarily and essentially a problem of the proper order of proof, and thus, within the sound judicial discretion of the trial court. Parente v. United States, 9 Cir., 1957, 249 F.2d 752, 754; United States v. Sansone, 2 Cir., 1956, 231 F.2d 887, certiorari denied 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500; Fuentes v. United States, 9 Cir., 1960, 283 F.2d 537; Williams v. United States, 9 Cir., 1961, 289 F.2d 598.
While counsel for appellants Enriquez and Franco moved generally for a judgment of acquittal, based on the lack of evidence to prove the guilt of either defendant, no motion was made to strike any evidence alleged to have been improperly offered or received because of lack of proof that a conspiracy involving such defendants had already been proved. We have already held there was sufficient evidence to go to the jury on all counts. The denial of the general motions acquittal— the only motions made below at the conclusion of all evidence — was proper. There is sufficient evidence here, if it was all properly admitted and believed by the jury, to establish a direct connection and participation by appellants in the sale, concealment and delivery of the narcotics on August 2, 1960.
We find, upon reading of the record, no merit whatsoever, in appellants Point VI with respect to remarks made by the Court during the trial. No cases are cited to support this contention, and the lengthy recital of testimony discloses exactly what appellants describe and no more: a court’s impatience with counsel for appellants. The record itself discloses the reason. Whether justified or not, impatience on the part of the court as here demonstrated, is not reversible error.
We find no merit in appellants’ first Point VIII — (p. 85 of Brief) (that the sentence imposed on appellants was heavier than that on other defendants.) The peculiar circumstances present in Saldana v. United States, 1961, 365 U.S. 646, 81 S.Ct. 783, 5 L.Ed.2d 855 (reversing 9 Cir., 274 F.2d 352) do not here exist.
We find no merit in appellants’ ninth point (second point numbered VIII, p. 89 of Brief). As appellants concede, it is purely a discretionary matter whether a person twenty-one years of age or under is to be sentenced under the Federal Youth’s Correction Act, 18 U.S.C. § 5010 (b).
Appellants’ Point VII rests on evidence relied upon and referred to under Point V, which we will consider hereafter.
We find error in Point IV, the cross-examination of the defendant Enriquez.
Enriquez took the stand on behalf of defendant Montez (Tr. 454.) His direct testimony was strictly limited, as the transcript discloses:
“By Mr. Arthur (counsel for Montez) : Mr. Enriquez — may I ask you, prior — that is, before this trial commenced — had you ever met personally or had you ever heard of a person by the name of Rose Natalie Montez, the defendant in this case? A. No sir, never.”
He was then asked twenty-six questions, to four of which objections were sustained. The first two questions relating to his knowing a defendant other than the one mentioned on direct examination, were proper; subsequent questions went far beyond the scope of the direct examination. Tr. p. 457-467.
Appellee admits the general rule to be that “the scope of cross-examination is limited to the factual area covered on the preceding direct examination.” Gov. Brief, p. 20. Moyer v. Aetna Life Ins. Co., 3 Cir., 1942, 126 F.2d 141 at 143, citing Philadelphia and Trenton R. R. Co. v. Stimson, 14 Pet. 448, 39 U.S. 448, 10 L.Ed. 535. But the government urges this general rule of cross-examination is “subject to enlargement within the discretion of the trial judge,” to show bias or prejudice (Wills v. Russell, 1879, 100 U.S. 621, 625, 25 L.Ed. 607) or to lay a foundation for other evidence, including prior contradictory statements (idem) ; or to identify the witness with his community, (Alford v. United States, 1931, 282 U.S. 687, 691, 51 S.Ct. 218, 75 L.Ed. 624; 3 Wigmore, Evidence (2d ed.) Sec. 1368 1(1) (b), or to test the truth of the statements made on direct, so as to affect the credibility of a witness, or to show intent. United States v. Manton, 2 Cir., 1939, 107 F.2d 834, 835. Clearly, says the government, the questions asked in cross-examination “would have been properly explored if the prosecution had taken the witness as its own,” (Gov. Brief p. 24) citing D’Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, 339.
We agree with the government’s interpretation of the law, but not that law’s applicability to the facts of this case. United States v. Mantón, supra, had to do with testing on cross-examination “the truth of the statements * * * made on direct.” [107 F.2d 845.] (Emphasis added.) D’Aquino, supra, [192 F.2d 369] relates to a defendant “[who] took the stand and undertook to testify upon direct examination concerning * * sundry subjects. She subjected herself to cross-examination on behalf of the prosecution as fully as any other witness in the case,” (as the government states) but only with respect to those matters which were within “the proper scope of cross-examination,” and which had to do with intent.
“Counsel for appellant objected to the cross-examination upon this point on the ground that it was improper as relating to matters that were not touched upon on direct examination of the witness. We think that appellant’s contention is based upon a misunderstanding of the proper scope of cross-examination. Appellant had given testimony in her direct examination designed to show both directly and circumstantially her good intent and her lack of intent to betray the United States. Thus, the whole question of appellant’s intention was open to inquiry upon cross-examination and the cross-examiner was entitled to bring up for examination any matter which rightly had a bearing upon intent.” 192 F.2d 338 at page 370.
And see Bell v. United States, 4 Cir., 1951, 185 F.2d 302, 310; Travis v. United States, 10 Cir., 1959, 269 F.2d 928, 939.
We recognize that the nature and extent of what constitutes proper cross-examination is almost exclusively a matter of discretion with the trial court. We agree that it should be, yet the prosecution cannot have unlimited rights; Blitz v. United States, 153 U.S. 308, 312, 14 S.Ct. 924, 38 L.Ed. 725; and if the questions here asked with respect to other defendants and other activities of the witness and relating to occasions and dates never touched upon on direct examination are permissible, at the very least, a cross-examiner should be required to explain to the court how and why such questions come within the scope of a proper cross-examination, i. e., after objection is made by defendant’s counsel, to require the government to make some offer of proof. No explanation was here offered. We see none that could justify the questions asked. Appellee urges that the appellant Enriquez could have been called as the government’s own witness, but he was not.
It is true that we find little that might constitute substantial or clearly prejudicial error as a result of the ruling the court made. The witness denied being present at the 4780 Whittier Boulevard address at the time when other witnesses had placed him there. He made no admissions. He denied the alleged conversation with respect to heroin on August 2, 1960, stating he was not in Whittier on that date. Yet we cannot know what influence such apparently innocent answers may have had on the jury.
The same error is urged with respect to appellant Franco, who also took the stand to deny he had ever seen, heard of, or spoken to the defendant Montez. He was then cross-examined, though “not to the same extent” as Enriquez. The same observations herein made as to Enriquez’ cross-examination are applicable to Franco’s appearance and cross-examination. It was also error, though perhaps not so aggravated, because fewer questions were asked on cross that did not relate to the direct examination. It is true that Raul Franco thereafter took the stand on his own behalf, and testified at some length on cross-examination. This opened much-wider the gates through which the government’s cross-examination was permitted to pass. But it did not justify questions asked of the defendant Franco as to whether or not he had committed a crime, i. e., stolen clothing of some one on August 19th or 20th, (Tr. p. 580-1). No offer of proof of conviction of a felony was made or suggested. This-alone was clearly sufficient to prejudice a. jury against Franco, and perhaps Enriquez, and suggests that a reversal of their conviction is required.
When the government has a right to a limited cross-examination (which relates to impeachment of the testimony gone into on direct examination, or anything relating to the witnesses’ credibility) it is extremely difficult for any trial court to know where the dividing line between proper and improper cross-examination should be fixed. For that reason, if no other, the discretion given to the trial court must be large. Recognizing that, we still find prejudice to each appellant’s defense in what here took place, under the peculiar facts of this case, and the limited evidence before the jury as to the participation of the defendants in the sale and possession of the narcotics.
We are thus brought to the last point —whether the government and its employees were guilty of prejudicial misconduct, denying appellants due process of law “in the manner in which the testimony of Augustine Ramirez was Secured and Used in the Trial.”
As appellants twice summarize it in their brief:
“(U)p until five days prior to the trial, Augustine Ramirez had not talked to any government agent or disclosed to any person what he claimed his testimony would be, or what he knew concerning defendants Franco and Enriquez. It is apparent what happened. The trial date was approaching with no evidence against Enriquez and Franco. Agent Maria testified he began looking for Augustine Ramirez and did not locate him until the 21st day of October, 1960, some days before the trial. He took him to the Federal Narcotics Bureau and fingerprinted him, mugged him, refreshed his memory, and then produced him at the trial four days later as a witness.”
We have carefully read the testimony and have particularly noted the wide latitude the trial judge permitted counsel for appellants in probing into any possible bias, prejudice, desire for revenge, untruthfulness, or inconsistencies on the part of Ramirez.
We find ourselves not completely satisfied that the appellants received a fair trial. Counsel for appellants contents himself with reciting the facts, and then concludes, “the manner in which this testimony of Ramirez was secured, elicited and presented to the jury constituted a denial of due process of law.” While we cannot agree with this, we do believe the lack of evidence as to the defendant’s participation with admittedly guilty defendants in Narcotics Act violations, other than the testimony of the sixteen-year-old witness, makes the government’s improper cross-examination of the defendants reversible, rather than harmless, error. The same questioning under a different state of facts, might be considered error, but harmless. Here we cannot in good conscience so hold.
The judgment of conviction as to each defendant is Reversed, as to each count.
Because these defendants may be tried again, we add the following comment: Appellants urge a second specific error in the asking of a question relating to “stuff” Martinez had said was in the appellants’ shop: “When you speak of ‘stuff’, Mr. Ramirez, what are you referring to?” Answer: “Heroin.” Tr. 250, Par. 2-4. Appellants’ counsel moved to strike the answer. This motion was denied, and this is claimed prejudicial error. Say appellants, “Here was a sixteen-year-old youth giving an answer that only an expert forensic chemist could give. It was the gist and heart of the case.”
Counsel misunderstands the purpose of the question. Ramirez was not asked as an expert whether the substance he saw was actually heroin. If that had been the only testimony as to what substance introduced in evidence within the envelopes marked Exhibits 1-C, 2-C and 3-C actually was, appellants’ point would have been well taken. Ramirez was asked what he “meant” (i. e., what he was referring to) by use of the word “stuff.” In answer, he stated heroin. The same rule of evidence would have applied had a witness referred to a “reefer” or “H.” What did the witness mean? He alone could say. Cf. Parente v. United States, 9 Cir., 1957, 249 F.2d 752, 756; Batsell v. United States, 8 Cir., 1954, 217 F.2d 257, 262.
There is no question but that the argot of drug addiction contains many strange terms. The trial judge below, however, could not have been on the Federal Criminal Bench in California a month before learning that “stuff” is a well-recognized synonym for narcotics of one type or another, usually heroin or some other opium derivative. There was no error in permitting this question and answer.
. We are further confused by the use of certain language in appellants’ brief. We have solved the problem by assuming that appellants’ brief uses the word “interpolate” when meaning “interrogate” (p. 13, 1. 4; p. 22, 1. 1, 3 and 13; p. 79, 1. 21) and “intercession” when meaning “interference” (p. 24, 1. 16; p. 32, 1. 6). Cf. Webster’s Unabridged Dictionary, any edition.
. As a matter of fact, counsel for all defendants stipulated the substance contained within envelopes marked Exhibits 1-0, 2-0 and 3-0, was heroin. As to 1-O, when received by the government chemist in envelope marked Exhibit 1-B, it was twenty-six and one-half per cent heroin, 2-0 when received was forty-four and one-half per cent heroin, and 3-C was twelve and seven-tenths per cent heroin. The balance was procaine or novocaine. Tr. p. 129 and Brief.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_capric
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the 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".
ACER REALTY CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 12350.
Circuit Court of Appeals, Eighth Circuit.
Dec. 28, 1942.
Gus O. Nations, of St. Louis, Mo. (R. Shad Bennett, of Clayton, Mo., and Nations & Nations, of St. Louis, Mo., on the brief), for petitioner.
S. Dee Hanson, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Helen R. Carloss, and Willard H. Pedrick, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before GARDNER, WOODRGUGH, and THOMAS, Circuit Judges.
THOMAS, Circuit Judge.
This case is presented here on a petition of the taxpayer to review a decision of the United States Board of Tax Appeals redetermining, and modifying and' confirming a deficiency in petitioner’s income taxes for the taxable years ended January 31, 1936, 1937, and 1938. The modifications made by the Board were favorable to the petitioner, and the Commissioner has not excepted. The opinion of the Board is reported in 45 B.T.A. 333.
The deficiency found by the Commissioner and in controversy here involves two items of the petitioner’s income tax returns for the taxable years. First, petitioner claimed deductions for salary paid its president for the years 1936, 1937, and 1938 of $10,075, $9,750, and $11,700 respectively, and for salary paid to its secretary-treasurer for the same years of $1,550, $1,650, and $1,800. The Commissioner allowed deductions for the president’s salary in the amount only of $1,200 for each year and for that of the secretary-treasurer in the amount of $600 a year. Second, the Commissioner added to the petitioner’s reported income for the year 1938 the sum of $8,700 as rentals constructively received in that year.
In disallowing the deductions claimed for officers’ salaries the Commissioner stated in his notice of deficiency that the amounts claimed are held to the extent of the amounts disallowed “to be in excess of reasonable allowances for salaries or other compensation for personal services actually rendered.”
In affirming the Commissioner the Board held that the payments to officers and disallowed “were not made as compensation of these two officers, as such. They were made for unusual, nonrecurrent services, the cost of which is represented now in the value of the capital assets thus acquired and now owned by petitioner.”
The petitioner complains in substance that the Board erred in deciding the controversy as.to deductions for salaries on a factual basis not framed by the pleadings or referred to in the evidence; and that the sole issue of fact raised by the pleadings was whether the services rendered by the officers to the corporation were worth the total amount paid for them. Consequently, it is urged, the Board had no jurisdiction to go outside of that issue and determine the case upon the question of the essential character of the services rendered.
On this question there is no merit in petitioner’s contention. The Board went no further than to find the facts and to apply the law to those facts. The Commissioner introduced no evidence at the hearing before the Board, and the testimony introduced by the petitioner abundantly supports its findings.
In brief the facts are that the petitioner is a corporation, the capital stock of which is owned almost wholly by the parties who were its president and secretary-treasurer respectively during the taxable years. The business of the corporation is chiefly the holding of title to approximately 50 acres of land in St. Louis County, Missouri, and leasing it to the Glenwood Sanatorium Company, a corporation owned also by the same parties who were the officers of the petitioner. A large building program consisting of the construction of buildings for the use of the tenant Sanatorium Company was carried through during the years 1933 to 1938 inclusive. Instead of having the work done by contractors the officers whose salaries are involved performed all the services necessary to the management of the construction of the buildings. The savings to the petitioner on the building program thus effected were in excess of $100,000. The petitioner’s evidence shows that the president’s services alone for this character of work were worth $12,000 a year for the four-year period, and that the secretary-treasurer’s services for the same class of work were worth approximately one-sixth as much. No evidence was produced to show the value of the officers’ salaries as such.
Except for the period from July, 1930, to July, 1932, the officers never at any time drew salaries until June 1, 1934, on which date the president was voted a salary of $325 a month and the secretary-treasurer a salary of $50 a month. On February 1, 1935, these salaries were increased to $650 and $100 a month respectively. On August 1, 1935, they were again increased to $975 and $150 a month respectively, and they remained at these amounts until February 1, 1938, when the building program was completed.
The substantive rights of the government and of the petitioner are controlled by §§ 22(a) and 23(a) of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev. Code §§ 22(a) and 23(a). Under the statute deductions for corporate salaries can be allowed only when such payments constitute “ordinary and necessary expenses paid or incurred * * * in carrying on any trade or business.” A capital expenditure is not deductible as an “ordinary” business expense. It is well-settled that money paid out for the acquirement of something of permanent use or value in one’s business is a capital investment and not deductible from income as an “ordinary” business expense. Duffy v. Central Railroad Company, 268 U.S. 55, 45 S.Ct. 429, 69 L.Ed. 846; Willcuts v. Minnesota Tribune Co., 8 Cir., 103 F.2d 947, 950, certiorari denied 308 U.S. 577, 60 S.Ct. 93, 84 L.Ed. 483; Houston Natural Gas Corp. v. Commissioner of Internal Revenue, 4 Cir., 90 F.2d 814, 816; Great Northern Ry. Co. v. Commissioner of Internal Revenue, 8 Cir., 40 F.2d 372. This rule of law is not .controverted by the petitioner. It argues that the character of the services rendered by its officers was not in issue, only their value.
On this issue we agree with the Board that petitioner is mistaken. Under the statute, supra, there could be but one question, namely, whether the payments represented reasonable allowances for services performed in carrying on the business of the corporation. If the salaries were in part paid for other services they were not ordinary expenses. When petitioner appealed to the Board and challenged the decision of the Commissioner, it took upon itself the burden of establishing its contention that the payments were not only reasonable in amount but also that they were ordinary and necessary in carrying on its business. Instead of sustaining that burden its proof affirmatively showed that the expenditures were not ordinary and necessary expenses paid or incurred in carrying on its business but, on the other hand, that they were in large part, if not entirely, capital investments.
In an appeal to the Board the burden is upon the taxpayer “to show that it was entitled to the deduction which the Commissioner had disallowed, and that the additional tax was to that extent illegally assessed.” Reinecke v. Spalding, 280 U.S. 227, 233, 50 S.Ct. 96, 98, 74 L.Ed. 385. The taxpayer must show that the assessment is wrong upon any proper theory. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224. Upon appeal the Board “may investigate anew the issues between the government and the taxpayer, and upon the determination of the appeal it may affirm, set aside, or modify the findings and decision of the Commissioner.” Blair v. Oesterlein Co., 275 U.S. 220, 227, 48 S.Ct. 87, 89, 72 L.Ed. 249. Neither the Board nor this court is bound by the reason assigned by the Commissioner for his decision. If the disallowance is right it must be affirmed by the application of the correct rule of law. Helvering v. Gowran, supra; Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037; J. & O. Altschul Tobacco Co. v. Commissioner of Internal Revenue, 5 Cir., 42 F.2d 609, 610.
The petitioner asserts that the Board erred in finding that the services of the president and secretary-treasurer were of the reasonable value of $1,200 and $600 per year respectively because there was no evidence to support such finding. The answer to this claim is that the Board made no such finding either expressly or impliedly. It found only that the Commissioner did not err in holding that the salaries paid in excess of these amounts were not ordinary expenses paid in carrying on petitioner’s regular business. The allowances made by the Commissioner were not in issue in the absence of a cross-appeal, and they were neither considered nor passed upon by the Board.
The petitioner asked the Board to amend its findings and to grant a further hearing or a rehearing to afford it an opportunity to present further evidence upon the type and character of services rendered by its officers. The application was denied, and the petitioner complains. The motion does not set out the evidence by which it is proposed to establish that the services rendered were of a character or type different from that shown at the hearing. Such further evidence, whatever it may be, would be in conflict with the testimony in the record and with the verified statements in the petition filed on appeal to the Board. Under these circumstances, the Board should not be reversed for denying the requests. See Scott v. Commissioner, 8 Cir., 117 F.2d 36, 40.
The second element of the controversy is whether petitioner was in constructive receipt of rent from its tenant, the Sanatorium Company, for the year 1938 in the amount of $8,700. Petitioner carries its accounts on a cash basis and contends that it did not so receive such rentals.
The evidence tends to show that the agreed rental for the year 1938 was $18,-000 subject to an increase in some amount on condition that the new buildings under construction at the beginning of the year should be completed and ready for occupancy before the end of the year. While the building program was under way the tenant had advanced to the petitioner on account sums totaling $10,500 and had paid on the 1938 rentals the sum of $9,300, leaving an unpaid balance, likewise carried on account, of $8,700. It was “the purpose”, so petitioner’s vice-president testified, “not to make an offsetting entry until it was determined whether the buildings would be ready.” Sometime prior to the end of the year it was known that the buildings would not be ready for occupancy at any time during the year, and consequently that the rental would not be increased. The secretary-treasurer of the petitioner at the time of the hearing, who was also its attorney during the taxable period, testified: “I claim we could offset it, but we don’t have to. * * * There was no reason why Acer could not credit $8,700 on the amount they owed Glenwood and there was no reason why they should.”
Referring to the ruling of the Commissioner including the $8,700 in income, the taxpayer, in its petition on appeal to the Board, said: “There would be a tax saving to petitioner by virtue of this ruling and it is not seriously protested, although it is not conceded that the Commissioner had the legal right to enforce such a ruling.”
The Board found that “the intention of the parties was that these mutual debts were to be treated as parts of one transaction. The offset of one debt against the other was intended and petitioner had an absolute right to make it during the tax year. Cf. Bailey v. Commissioner, 103 F.2d 448.” We think that the requirements of constructive receipt are satisfied and the petitioner could not, by merely delaying the making of a book entry, postpone this rent receipt to a future period.
The evidence supports the Board’s finding that the intention and purpose of the parties were to set off these mutual debts; to make an offsetting entry in their books when but not until it was determined whether the buildings would be ready for occupancy during the year 1938; that before the end of the year the fact that the buildings would not be ready was determinable; and that petitioner had the right to make the set-off entry within the taxable year. The consent of the tenant inhered in the agreement. The question for decision, therefore, is whether the petitioner for tax purposes had the right to delay the entry and postpone the “rent receipt to a future tax period.”
It is true, as contended by the petitioner, that “Mutual debts do not per se extinguish each other.” Bailey v. Commissioner of Internal Revenue, 5 Cir., 103 F.2d 448, 449. It is also the law that “Where the taxpayer does not receive payment of income in money or property realization may occur when the last step is taken by which he obtains the fruition of the economic gain which has already accrued to him.” Helvering v. Horst, 311 U.S. 112, 115, 61 S.Ct. 144, 146, 85 L.Ed. 75, 131 A.L.R. 655. These rules are not inconsistent with the present decision. The principle here applicable is “that the powe to dispose of income is the equivalent c ownership of it.” Harrison v. Schaffner, 312 U.S. 579, 580, 61 S.Ct. 759, 760, 85 L.Ed. 1055. The revenue acts are “not so much concerned with the refinements of title as * * * with actual command over the property [which is] taxed — the actual benefit for which the tax is paid.” Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916; Harrison v. Schaffner, supra, 312 U.S. at page 581, 61 S.Ct. 759, 85 L.Ed. 1055. The last act necessary to give petitioner command over the $8,700 of rentals for 1938 was not the book entry but the failure to complete the buildings for occupancy in that year. The right of command existed upon the occurrence of that event and any delay in making the proper book entry could not change it. Upon petitioner’s theory, if the set-off entry should never be made the tax would never accrue. Riley Inv. Co. v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 85 L.Ed. 36. Negligent or willful delay in making a proper book entry cannot be used to defeat the taxing power. “* * * the taxpayer, even on the cash receipts basis, who has fully enjoyed the benefit of the economic gain represented by his right to receive income, can [not] escape taxation because he has not himself received payment of it from his obligor.” Helvering v. Horst, supra, 311 U.S. at page 116, 61 S.Ct. at page 147, 85 L.Ed. 75, 131 A.L.R. 655. The taxpayer in the instant case enjoyed the benefit of the economic gain when the right to receive credit for the rent accrued. The gain need not be collected by the taxpayer in order that it be taxable. Helvering v. Stuart, 63 S.Ct. 140, 87 L.Ed. -. Constructively received income is taxable when the amount is definitely liquidated and available to the taxpayer without restriction. Penn v. Robertson, 4 Cir., 115 F.2d 167, 175. The facts found by the Board meet these conditions.
The decision of the Board of Tax Appeals is affirmed.
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_respond2_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 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.
FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. William ERICKSON and W. J. Jones & Son, Inc., Appellees. FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. Eugene BENNETT and W. J. Jones & Son, Inc., Appellees.
Nos. 19791, 19792.
United States Court of Appeals Ninth Circuit.
April 12, 1965.
Rehearing Denied May 20, 1965.
Erskine B. Wood, John R. Brooke, Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for appellant.
Philip Levin, Pozzi, Levin & Wilson, Dennis J. Lindsay, Garry P. McMurry, Krause, Lindsay & Nahstoll, Portland, Or., for appellees.
Before ORR, MERRILL and BROWNING, Circuit Judges.
PER CURIAM.
Appellees Erickson and Bennett are longshoremen who were injured by a falling boom aboard the Steamship Alexandria. Erickson and Bennett each filed a libel against the vessel and its owner, appellant Fidelity Shipping Company, alleging that their injuriés were the proximate result of unseaworthiness of the Alexandria. Appellant impleaded appel-lee stevedoring company, W. J. Jones & Son, employer of Erickson and Bennett, claiming a right to indmenity due to an alleged failure to perform stevedoring services in a safe, proper, and workmanlike manner. Trial was had and the trial judge found that the appellees were injured as a proximate result of the unseaworthiness of the Alexandria. Specifically, the supply of steam was found to be inadequate to properly operate the boom and the brake inadequate to prevent the boom from falling. He also found in favor of W. J. Jones & Son on the third-party indemnity claim. He found no failure on the part of W. J. Jones & Son or its employees to perform the stevedoring services here in a safe, proper, and workmanlike manner.
We have examined the record in this case and find substantial evidence to support each of the above findings.
Appellant contends that the amount of damages awarded to Erickson was excessive. Our examination of the record convinces us that there is no merit to this contention.
Affirmed.
Question: 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_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
COMMISSIONER OF INTERNAL REVENUE v. GERSTLE.
No. 8426.
Circuit Court of Appeals, Ninth Circuit.
March 25, 1938.
James W. Morris, Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, Louise Foster, and M. Leo Looney, Jr., Sp: Assts. to Atty. Gen., for petitioner.
Francis W. Murphy, of San Francisco, Cal., for respondent.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
This case was brought here on petition to review a decision of the Board of Tax Appeals. The question presented is whether the respondent is entitled to deduct for income tax purposes his proportionate share of operating losses sustained by syndicates of which he was a member. Specifically, it is whether the syndicates are associations within the meaning of section 2(a) (2) of the Revenue Act of 1926, and section 701 (a) (2) of the Revenue Act of 1928, 26 U. S.C.A. § 1696(3), providing that for the purposes of the act “the term ‘corporation’ includes associations, joint-stock companies, and insurance companies”; or whether, as contended by respondent and as held by the Board, the syndicates are joint ventures. If the latter, the members are taxable as individuals and have the right to deduct each year their proportionate share of the operating losses of the syndicates. If the syndicates are associations, and therefore, taxable entities, their losses are personal to them and cannot be deducted by any one else.
Income taxes for the years 1927, 1928, and 1929 are involved. The material facts are stipulated and disclose the following situation: For many years prior to 1927 the respondent and the several other members of the syndicates involved had been directors of corporations owning large department stores in San Francisco and Oakland. In 1927 it was decided to build a new store in Oakland some blocks away from the then business district. The respondent and his associates decided to purchase properties in the immediate vicinity of the proposed new store in order that they might realize profits from an expected increase in value of the neighboring real estate. The original plan was expanded somewhat to include the purchase of other properties in Oakland in anticipation of a general rise in real estate values. Four syndicates in all were organized within a few weeks of each other, the members contributing to a pool to be used for the purchase of the properties thereafter acquired. At the outset it was their purpose to purchase certain properties which they believed could be quickly resold at a profit. It was not then the purpose to improve any of the properties acquired. The management of the properties was intended to be such only as would be necessarily incident to the ownership in the interim between purchase and anticipated sale.
The syndicate agreements were made in writing by three syndicate managers and those who affixed their signatures as members. All four agreements are identical in form. It was recited that the syndicate members are desirous of acting jointly in the purchase, management, and sale of real properties in Oakland, and for that purpose have requested the syndicate managers to act as their agents and trustees. The parties agreed that the managers should purchase, manage, and sell the real properties for the account of the members, the managers to have complete discretion in the selection of the properties to be purchased, the amount of the purchase price, the details of management, the terms of sale and of mortgage, and of all other matters related to the syndicate operations. The properties purchased might be taken in any names the managers might determine'. It was provided that each member on executing the agreement should set down after his name the amount he would contribute to the operations, “and his interest in the properties, profits, obligations, debts and losses of the syndicate shall be that proportion thereof which the amount set after his signature bears to the total of the amounts set after the signatures of all the syndicate members.” It was agreed that the funds required for the operations of the syndicate should be provided by the members, who were to pay to the manag -rs, on call, their respective proportions of the total sum called for, “provided that no syndicate member shall be called upon, prior to the termination of the syndicate, to pay a greater aggregate amount than that set after his signature hereto.” The managers were empowered to borrow money in their own names or in the names of others for the benefit of the syndicate, and the members were liable for the repayment thereof in proportion to their respective interests. The managers, who might act by majority, were not'to be responsible for any act performed in good faith, and were to be indemnified and held harmless by the members from any loss or liability that they might be subjected to. In the event of vacancies, successors to syndicate managers might be appointed by the members. The managers were entitled to compensation under certain conditions. The syndicate might be terminated by the managers or by members holding at least two-thirds of the beneficial interest, and upon termination the syndicate property was to be delivered to the members in their proper proportions, and if there should be a loss, each member was required forthwith to pay his proper proportion to the managers. No assignment by a syndicate member of his interest could be made effective until written notice thereof had been delivered to the managers, “nor shall any assignment release the syndicate member so assigning from liability hereunder unless the syndicate managers shall so agree in writing.” The agreements were to be executed in any number of counterparts, each constituting a single agreement. No certificates or other evidence of interest were provided for in the agreement, nor were any ever issued.
Syndicate No. 1 was the original syndicate, through which six properties were purchased. The purpose of syndicate No. 2 was the purchase and resale of St. Mary’s College property. Syndicate No. 3 acquired two properties, and syndicate No. 4 was formed to acquire what is called the Gross property. No other properties were purchased.
The anticipated rise in values did not occur. There was instead a decline which continued throughout the subsequent years. By reason of these circumstances, the syndicate managers were compelled to operate certain of the buildings and to rent the remaining unimproved properties, these latter being temporarily appropriated for a variety of purposes. Prior to 1930, two properties only were resold, the remainder in the latter year being transferred to corporations.
At the commencement of the operations an arrangement was made with 'a bank to provide the funds origjnally required for the purchase of the several properties, these funds being advanced on the notes of the syndicate managers. The acquisitions were made on the recommendation of the bank and a firm of real estate brokers in Oakland. Believing that a disclosure of the identities of the real parties in interest would result in an immediate increase in. prices, precautions were taken to conceal the identities of the members of the syndicate. Accordingly, title to all properties was taken in the name of one or the other of two title companies.
The syndicates, as such, had no name. There were no officers except as the managers might be so considered. The agreements provided the sole evidence of the interest of the several members, and each member received an executed counterpart. While the agreements gave the managers broad and exclusive powers, the practice was to decide all questions of importance only after the views of all concerned had been obtained. The managers did not organize. The bank, as fiscal agent, kept all records pertaining to syndicate affairs. It rented the improved properties, collected the rents, and paid all expenses. From time to time the syndicate members were called upon to supply funds to the bank proportionate to their respective subscriptions. The funds advanced by the bank on the notes of the syndicate managers, both for the acquisition and subsequent maintenance of the properties, were repaid directly to the bank by the members on calls prepared and issued by the bank directly to the members. As security for the repayment of advances, the bank held declarations of trust covering the syndicate assets executed- by the title companies — the holders of the record title — these declarations of trust being executed with the consent of the managers. The bank was compensated for the services rendered by it.
Large operating losses were sustained by the syndicates during the years in question. The members deducted on 'their individual returns for those years their respective proportions of the losses, and these were disallowed by the Commissioner. The Boai;d disagreed with the Commissioner, holding that the syndicates were not associations taxable as corporations, and that operating losses were allowable to the members.
In Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 295, 80 L.Ed. 263, the court, after reviewing the decisions in Crocker v. Malley, 249 U.S. 223, 39 S.Ct. 270, 63 L.Ed. 573, 2 A.L.R. 1601; and Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949, said: “While it is impossible in the nature of things to translate the statutory concept of ‘association’ into a particularity of detail that would fix the status of every sort of enterprise or organization which ingenuity may create, the recurring disputes emphasize the need of a further examination of the congressional intent.” Definitions-of the term “association” showing the ordinary meaning of the term as “applicable to a body 'of persons united without a charter ‘but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise,”’ were there said to be helpful, but not to be accepted to the extent of making mere formal procedure a controlling test. “While the use of corporate forms may furnish persuasive evidence of the existence of an association, the absence of particular forms, or of the usual terminology of corporations, cannot be regarded as decisive.” Again, it is said that “the inclusion of associations with corporations implies resemblance ; but it is resemblance and not identity.” Certain salient features of corporate organization, as furnishing analogies, are pointed out by the court. Thus it is said, in substance, that a corporation, as an entity, holds the title to the property embarked in the undertaking; it furnishes centralized management through representatives ; it insures continuity of enterprise; it facilitates the transfer of beneficial interests and the introduction of large numbers of participants; and it permits the limitation of personal liability of participants to the property embarked in the undertaking.
Certain of these features were present in the syndicates involved. While title to the assets was not taken in. the supposed entity or in the syndicate managers, continuity of the enterprise was effected, insuring against disturbance resulting from death or from the transfer of ownership of beneficial interests. Centralized management was provided for in the agreements, notwithstanding in practice there was general consultation before important decisions were reached. See - Helvering v. Coleman-Gilbert Associates, supra, note. In other respects, these syndicates lack analogy to corporations. Two of the characteristic advantages of corporate organization have been generally thought to be the limited liability of the members, and a ready divisibility and transferability of beneficial interests, making toward the inclusion in the enterprise of large numbers of participants. The liability of the syndicate members was not limited. Their beneficial interests were not readily or conveniently transferable. There were no shares, certificates, or other evidence of interest beyond each member’s copy of the agreement. While, in a few instances, divisions were made of their interest by members, orally or in writing, those acquiring proportionate shares of the interest of these members' were never consulted, and no calls were ever made upon them. Their relations were entirely with the member with whom they had originally dealt and from whom their respective interests were acquired. While, as was said in Morrissey v. Commissioner, supra, “the test of an association is not to be found in the mere formal evidence of interests or in a particular method of transfer,” yet the absence of familiar provision for adequate evidence of interest or of any convenient method of transfer is important to be considered.
In A. A. Lewis & Co. v. Commissioner, 301 U.S. 385, 57 S.Ct. 799, 801, 81 L.Ed. 1174, it was said that the trust reviewed in Morrissey v. Commissioner, supra, “was a medium for the carrying on of a business enterprise by the trustees-and participation in the profits by numerous beneficiaries whose interests were represented by transferable share certificates, thus permitting the introduction of new participants without affecting the continuity of the plan. The certificates represented both preferred and common shares. We pointed out that the corporate analogy was evidenced by centralized control, continuity and limited liability, as well as by the issue of transferable certificates.”
An attempted analysis of the character and functions of the syndicates here involved leads to no entirely satisfying conclusion as to what they are. In some respects they resemble partnerships, in others corporations, and in the main they are markedly different from either. The Board held that they were joint ventures, citing the definition of such given in 33 C.J. 841 as “a special combination of two or more persons, where, in some specific venture, a profit is jointly sought, without actual partnership or corporate designation.” It was thought by the Board that the assets acquired through the syndicate activities were the property of the members, as tenants in common, citing McCausey v. Burnet, 60 App. D.C. 201, 50 F.2d 491, and Clark v. Sidway, 142 U.S. 682, 12 S.Ct. 327, 35 L.Ed. 1157. It seems clear that the members were equitable owners of the real property acquired, and that their beneficial interests were not merely personal claims against the syndicate managers.
No useful purpose would be 'served by further review of the many authorities dealing with various aspects of this difficult subject. Attention will be called only to two recent cases involving opposite sets of facts and illustrating the views that have been taken following on the decision of Morrissey v. Commissioner, supra. These are Monrovia Oil Co. v. Commissioner, 9 Cir., 83 F.2d 417, decided by this court, and Myers v. Commissioner, 89 F.2d 86, decided by the Circuit Court of Appeals for the 7th Circuit.
We hold that the syndicates were not associations within the meaning of the applicable statute, and the decision of the Board is therefore affirmed.
And see the cases immediately following: Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273; Helvering v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275; Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
Question: 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_adminrev
|
N
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
SAMPLE FURNITURE SHOPS, Inc., v. COMMISSIONER OF INTERNAL REVENUE.
No. 4812.
Circuit Court of Appeals, Fourth Circuit.
Oct. 17, 1941.
Walter E. Barton, of Washington, D. C. (Joseph R. Curl, of Wheeling, W. Va., on the brief), for petitioner.
Carolyn E. Agger, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and Michael H. Cardozo, iv, Sp. Assts. to the Atty Gen., on the brief), for respondent.
Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.
PER CURIAM.
The Commissioner of Internal Revenue made an assessment against the Sample Furniture Shops, Inc., a West Virginia corporation, as transferee of the assets of Patrick King for his unpaid income tax amounting to $3,584.37 for the calendar year 1937. The corporation petitioned the Board of Tax Appeals for review which, after hearing, affirmed the Commissioner’s determination with a minor adjustment, finding a deficiency due from the transferee in the amount of • $3,538.70. The corporation here petitions for review of that determination.
The statutory basis for the transferees liability is Section 311(a) (1) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Code, § 311(a) (1), which imposes upon a transferee of property of a taxpayer, the liability, at law or in equity, for the tax (including interest) imposed upon the transferor by Title 1 (Income Tax) of the Revenue Act, § 101 et seq., 26 U.S.C.A. Int.Rev.Code, § 101 et seq.
From the findings of fact made by the Board, it appears that Patrick King had been conducting a retail furniture business in Wheeling, West Virginia for some years prior to October 29, 1937, and shortly prior thereto, he had proposed to open another similar store in Youngstown, Ohio and had stocked it with furniture of the value of $15,000 to $20,000, no part of which had been paid for. On October 29, 1937, King formed a West Virginia corporation to continue the business and at once transferred to it the stock of the Youngstown store, and issued to himself and wife 99 of the 100 issued shares of the corporation’s capital stock of the par value of $100 per share. The corporate resolution of that date recited that the corporation purchased the assets of the business, and in consideration therefor authorized the issuance to King of sufficient capital stock to compensate him for his equity in the business “after closing of the books and accounts December 31, 1937”; and the corporation assumed the “liabilities of P. King, doing business as the Sample Furniture Shops, 16 — 16th St.”. After December 31, 1937, King also transferred the stock and fixtures and equipment of the Wheeling store to the corporation without issuance of any additional shares of stock. King’s equity in the business was estimated by him to have been $20,000 to $24,000 in excess of his liabilities.
The corporation was almost immediately in financial difficulties, because in February 1938, some of its creditors were substituted as directors of the corporation, and early in May of the same year, it made a general assignment for the benefit of creditors. The record does not disclose the result of the liquidation, nor a list of the liabilities of the corporation or of King. The latter had no assets of any value as of December 31, 1937, except the shares of stock which had been issued to him, and apparently he had no personal debts other than the tax liability.
King filed a tentative income tax return for 1937 prior to March 15, 1938, which was prepared for him by the accountant of the corporation, then under management of the creditors. $75 was paid on account of the estimated amount by the check of the corporation, and charged to King’s account. Thereafter King filed a completed return which disclosed a net income of $30,515.06, on which a tax in the amount of $3,627.05 was shown to be due. The return also showed that (with the exception of an item of $381.74 received by King as salary from the corporation) his whole income for 1937 consisted of the net profit of his Wheeling furniture business in the amount of $31,-208.14.
The conclusion of the Board that the corporation was liable as transferee at law was based on its construction of the corporate resolution for the purchase of the assets of King in which the corporation had assumed the “liabilities of P. King, doing business as the Sample Furniture Shops”. The Board held that the liabilities so assumed included the personal income tax liability of King. As the Board thus held that the corporation was liable at law, it found it unnecessary to consider the possible liability as transferee in equity. The contention of the corporation here is that this construction of the resolution was erroneous as a matter of law; and that the findings made by the Board do not justify our determination that the corporation was liable as a transferee in equity. The argument in support of the first point is that the proper construction of the resolution necessarily limits the liabilities assumed to those purely incident to the conduct of the business, thus excluding the personal federal income tax liability of King. Ordinarily it is true that where a stranger purchases a business and assumes its liabilities, the latter would not include personal obligations of the vendor not related to the business; but in construing the corporate resolution here involved, which does not clearly exclude King’s tax liability, it is entirely permissible to look to the surrounding facts and circumstances of the particular case. In considering these we note, as did the Board, that King’s income for 1937 arose (with a minor exception for which adjustment was made by the Board) wholly from the business itself; and the sale was not made to a stranger but to a corporation wholly dominated at the time by King, and under circumstances from which it could well be inferred that the corporation was hardly more than a legal fiction, although the Board made no specific finding on this point. The circumstances also suggest that if King had not intended the corporation to assume his tax liability, which was comparatively substantial in amount, a fraud would have resulted on the federal revenues. The rather slender record affords no explanation of the singular fact that a business which in 1937 produced a net profit of over $30,000, and had an estimated equity of $24,000 at the end of 1937, suddenly thereafter became practically insolvent; and the reasonable inference would seem to be that both King and the corporation were really insolvent at the time of the transfer. .
We are not unmindful that the burden of proof was upon the Commissioner to establish the liability of the transferee; but looking at the findings of fact as made by the Board, supported by the evidence in the record, we are unable to say that its construction of the corporate resolution, that the personal tax liability of King was assumed by the corporation, was erroneous as a matter of law. We therefore affirm the decision of the Board.
Affirmed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_habeas
|
A
|
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.
PETITION OF SHORTRIDGE et al. In re A. C. WAGY & CO.
Circuit Court of Appeals, Ninth Circuit.
July 1, 1927.
No. 5189.
1. Bankruptcy <§=1.81/2. 20(1) — Jurisdiction of bankruptcy courts is exclusive of ail other courts (Bankruptcy Act [Comp. St. § 9585 et seq.]).
It is well settled that jurisdiction of courts of bankruptcy, established by the Bankruptcy Act (Comp. St. § 9585 et seq.), is exclusive of all other courts, whether state or federal.
2. Bankruptcy <§=>181/2 — Equity receivers held not entitled to corporation’s books and papers as against receivers in bankruptcy appointed in another division of district.
Equity receivers of corporation held not entitled to custody of its books and papers, held by commissioner of corporations, as against bankruptcy receivers appointed in another division of district, in view of exclusive jurisdiction of bankruptcy court under ■ Bankruptcy Act (Comp. St. § 9585 et seq.).
3. Bankruptcy <§=I00(I), 114(1) — Orders of adjudication in bankruptcy, or appointing receivers, fair on their face, are not subject to collateral attack.
Order of adjudication in bankruptcy, and order appointing receivers, fair on their face, are not subject to collateral attack, in appellate court or elsewhere.
4. Bankruptcy <8=114(1) — Court’s finding of necessity for appointment of receivers held conclusive until set aside on direct appeal.
Finding of bankruptcy court that appointment of the receivers was absolutely necessary for the preservation of the estate held conclusive, until set aside on direct appeal.
Petition for Certiorari to the District Court- of the United States for the Southern District of California.
Petition by S. M. Shortridge, Jr., and another, as equity receivers of A. C. Wagy & Co., for certiorari to review order appointing receivers in bankruptcy and directing Commissioner of Corporations to deliver hooks and records and other documents to receivers so appointed.
Petition denied.
Arnold C. Lackenbach, of San Francisco, Cal., for petitioners.
Louis W. Myers, of Los Angeles, Cal., for District Judge.
Shaw & McDaniel and Louis W. Myers, all of Los Angeles, Cal., for respondents Carnahan and Scott.
Before HUNT and EUDKIN, Circuit Judges.
HUNT and EUDKIN, Circuit Judges.
May 23, 1927, one Eobert Van Norden filed his bill of complaint in the District Court of the United States for the Southern Division of the Northern District of California against A. O. Wagy & Co., a corporation, for the recovery of upwards of $4,000, and for the appointment of a receiver. Upon the filing of the bill of complaint, and with the consent of the defendant therein named, S. M- Short-ridge, Jr., and E. H. Cochran were appointed receivers of the property and assets of the defendant corporation, and have duly qualified and entered upon the discharge of their duties as such. May 25, 1927, the receivers thus appointed petitioned the District Court of the United States for the Southern Division of the Southern District of California, praying that they might be appointed as ancillary receivers in that district. May 28, 1927’, the last-mentioned court denied the petition for the appointment of Shortridge and Cochran as ancillary receivers, and appointed Joseph Scott and H. L. Carnahan as such.
June 1, 1927, three creditors filed an involuntary petition in bankruptcy against Wagy & Co., in the Southern District, and on the same day Scott and Carnahan were appointed receivers in bankruptcy, with the usual rights and powers of such receivers. June 16, 1927, Wagy & Co. filed a voluntary petition'in bankruptcy in the Southern District and was thereupon adjudged a bankrupt. On the same day Scott and Carnahan were reappointed receivers in bankruptcy on petition of the bankrupt. June 22, 1927, a second adjudication in bankruptcy was made upon the involuntary petition theretofore filed. June 13, 1927, the District Court for the Northern District made and entered an order in the suit there pending, directing and commanding the commissioner of corporations of the state of California to forthwith deliver and turn over to the receivers appointed by that court all records, books of account, correspondence, and other documents of every kind and character theretofore taken, seized, or received by the commissioner and belonging to the corporation.
June 14, 1927, the District Court for the Southern District issued a restraining order in the bankruptcy proceeding, on petition of the receivers appointed by that court, enjoining and restraining the commissioner of corporations from delivering or turning over the books of account, records, correspondence, and other documents belonging to the corporation, as directed by the order made and entered in the Northern District. The receivers appointed in the Northern District thereupon petitioned this court for an order directing the judge of the District Court of the Southern District to show cause why the order appointing the receivers in bankruptcy, and the order directed against the commissioner of corporations should not be annulled and canceled. We issued a show cause order as prayed, and from the returns made by the judge against whom the order was directed, and the receivers appointed by him, and from the original petition filed in this court, the foregoing facts appear.
Many important questions have been raised or suggested by the respective parties on the argument before this court, such as a want of jurisdiction in the District Court of the Northern District to appoint the receivers; invalidity of the order appointing the ancillary receivers in. the Southern District, such order having been made on the petition of the receivers appointed in the Northern District, without the institution of any other suit or proceeding there; want of jurisdiction in the bankruptcy court to appoint the receivers, and a want of jurisdiction in this court to review the orders complained of; but the necessity for an early decision is such that we will simply direct our attention to what we deem the controlling question in the case.
It is well settled that the jurisdiction of the courts of bankruptcy established by the national Bankruptcy Act (Comp. St. § 9585 et seq.) is exclusive of all other courts, whether state or federal. As said by the Supreme Court in Re Watts and Sachs, 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933:
“And the operation of the bankruptcy laws of the United States cannot be defeated by insolvent commercial corporations applying to be wound up under state statutes. The Bankruptcy Law is paramount, and the jurisdiction of the federal courts in bankruptcy, when properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive. * * * rpjjg generai as between courts of concurrent jurisdiction is that property already in possession of the receiver of one court cannot rightfully be taken from him without the court’s consent, by the receiver of another court appointed in a subsequent suit, but that rule can have only a qualified application where winding up proceedings are superseded by those in bankruptcy as to which the jurisdiction is not concurrent.”
Again, in United States Fidelity & Guaranty Co. v. Bray, 225 U. S. 205, 32 S. Ct. 620, 56 L. Ed. 1055, the same court said:
“We think it is a necessary conclusion from these and other provisions of the act that the jurisdiction of the bankruptcy courts in all ‘proceedings in bankruptcy’ is intended to be exclusive of all other courts, and that such proceedings include, among others, all matters of administration. * * * A distinct purpose of the Bankruptcy Act is to subject the administration of the estates of bankrupts to the control of tribunals clothed with authority and charged with the duty of proceeding to final settlement and distribution in a summary way, as are the courts of bankruptcy. Creditors are entitled to have this authority exercised, and justly may complain when, as here, an important part of the administration is sought to be effected through the slower and less appropriate processes of a plenary suit in equity in another court, involving collateral and extraneous matters with which they have no concern, such as the controversy between the complainant and the indemnitor banks. Of the fact that the suit was begun in the Circuit Court with the express leave of the court of bankruptcy, it suffices to say that the latter was not at liberty to surrender its exclusive control over matters of administration or to confide them to another tribunal.”
See, also, United States v. Wood (C. C. A.) 290 F. 109; In re Yaryan Naval Stores Co. (C. C. A.) 214 F. 563; In re American & British Mfg. Corporation (D. C.) 300 F. 839.
Such being the exclusive nature of the jurisdiction conferred on the bankruptcy courts, the solution of the question before us is not difficult. Nor need we concern ourselves with the validity or propriety of the different orders, when made by the different courts, because tbe disposition of tbe case must rest on facts and conditions as they exist at present. Tbe order of adjudication in bankruptcy and tbe order appointing receivers in that proceeding are fair upon their face, and are not subject to collateral attaek in this court or elsewhere. It is contended that there was no necessity for the appointment of the receivers in bankruptcy, inasmuch as the assets of the bankruptcy, corporation were already in the custody of receivers appointed by the two courts; but the court below found that the appointment of such receivers was- absolutely necessary for the preservation of the estate, and that finding is conclusive unless or until set aside on a direct appeal.
The question, therefore, is this: As between the equity receivers appointed in the Northern District and the bankruptcy, receivers appointed in the Southern District, which has the superior right to the custody of books and papers belonging to the bankrupt and not now in the possession or custody of the receivers appointed by either court? If the jurisdiction of the bankruptcy court is paramount and exclusive, it seems to us that this question admits of but one. answer. Should the equity receivers gain possession of the books and documents in question, it would become their duty to immediately surrender them to the receivers appointed by the bankruptcy court, on a proper demand tberefor, and why. should they, reach their proper custody in this roundabout way. Any attempt at a double administration of this estate by two sets of receivers can only result in needless .expense, delay, confusion, and ■unseeming conflict. To prevent just such things, bankruptcy courts were established, and endowed with full and complete jurisdiction to enforce a- single and simple administration.
The petition is denied.
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:
|
songer_appel1_2_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
BRICKLAYERS AND STONE MASONS UNION, LOCAL NO. 2, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Associated General Contractors of Minnesota, Intervenor.
No. 76-1595.
United States Court of Appeals, District of Columbia Circuit.
Argued 8 June 1977.
Decided 9 Aug. 1977.
Samuel I. Sigal, Minneapolis, Minn., with whom Stephen D. Gordon, St. Paul, Minn., was on the brief, for petitioners.
Andrew F. Tranovich, Atty., N.L.R.B., Washington, D.C., of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of Court, with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Michael S. Winer, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on the brief, for respondent.
Larry A. Hanson, St. Paul, Minn., with whom A. Patrick Leighton, St. Paul, Minn., was on the brief, for intervenor.
Vincent J. Apruzzese, Springfield, N.J., filed a brief on behalf of Associated Gen. Contractors of America, as amicus curiae, urging denial of petitioner’s petition for review.
Before WRIGHT and WILKEY, Circuit Judges, and WILLIAM B. JONES, United States Senior District Judge for the United States District Court for the District of Columbia.
Sitting by designation pursuant to Title 28, U.S.C. § 294(c).
Opinion for the court filed by WILKEY, Circuit Judge.
WILKEY, Circuit Judge:
This case arises on the petition of Bricklayers and Stone Masons Union, Local No. 2, Bricklayers, Masons and Plasterers’ International Union of America, AFL-CIO (the Bricklayers); Construction and General Laborers Local 563, Laborers’ International Union of North America, AFL-CIO (the Laborers); International Union of Operating Engineers, Twin City Local No. 49, AFL-CIO (the Engineers); and Plumbers Union Local No. 15, United Association of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (the Plumbers). The petition for review seeks to have set aside a decision and order of the National Labor Relations Board (the Board) issued on 17 June 1976, which found that the four Unions had violated Section 8(e) of the National Labor Relations Act (the Act). There is also before the court a cross-application by the Board for enforcement of the order issued against the Bricklayers, Laborers, Engineers, and Plumbers.
We note at the outset that the court has been materially assisted by particularly able briefs and arguments of counsel, whose obvious competence in this field of law enabled them to dispense with wasteful attention to unessentials. After careful consideration of how the law applies in this case, we affirm the order of the Board and grant the cross-application for enforcement for the reasons stated herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Facts
The facts as found by the Board are not in dispute. During the summer of 1973 the Elk River, Minnesota School District contracted with Gunnar I. Johnson & Son, Inc. (Johnson) as general contractor, Gorham Construction Company, Inc. (Gorham) as prime mechanical contractor, and Design Electric, Inc. (Design) as prime electrical contractor for constructing an elementary school. Johnson employed members of the Bricklayers, Laborers, and Engineers and Gorham employed members of the Plumbers, all of which unions are affiliates of the AFL-CIO. Design, however, employed members of the Christian Labor Association, Local No. 84, an independent organization not affiliated with AFL-CIO.
Work began at the construction site in August 1973. On 24 October the International Brotherhood of Electrical Workers, Local No. 110 (Electrical Workers), an affiliate of the AFL-CIO, caused a sign to be posted at the construction site stating:
Notice to the Public — Electrical Work Being Performed on This Job is at Substandard Wages and Benefits by Design Electric — This Notice is for Information of the Public and is not Intended to cause any Person to Refuse to Pick Up or Deliver or to Perform any Service — IBEW L.U. # 110.
Employees of Johnson and Gorham, appearing for work at their usual starting time, left the jobsite upon seeing this sign and refused to perform any work thereon.
The Associated General Contractors of Minnesota (AGC) represents Minnesota contractors, including Johnson, in contract negotiations with the construction trades unions. After the Electrical Workers’ sign was posted, AGC recommended that Johnson establish reserved gates to isolate the dispute. Johnson then posted signs at the construction site, designating the east gate for the employees and suppliers of Johnson and Gorham, the neutral employers, and the west gate for the employees and suppliers of Design, the primary employer. Thereafter, the Electrical Workers picketed the west gate only. Except for a short time on 31 October 1973, the Johnson and Gorham employees refused to enter the east gate, reserved for Johnson and Gorham, until their work stoppage was enjoined by the District Court on 28 March 1974.
On 1 March 1974, AGC, Johnson, and Gorham jointly filed a complaint in the United States District Court for the District of Minnesota against the four Unions, seeking a temporary restraining order against their members from refusing to work upon the jobsite. The complaint also sought an order requiring the Unions to arbitrate the dispute in accordance with the mandatory arbitration provisions in their respective contracts. On 28 March 1974, the court, finding “concerted action by [the Unions] and their members to effect a work stoppage on the project,” granted a temporary restraining order and directed the parties’ to arbitrate the dispute. The order also required the Unions to post notices at the project indicating that they did not condone the work stoppage, and that the collective bargaining agreements required all members to return to work. The Unions complied with the order, and work resumed at the project on 29 March 1974.
B. The Arbitrator’s Ruling
In April 1974 AGC, Johnson, and Gorham and the Unions arbitrated the meaning of the picket line clauses contained in their respective contracts. The picket line clauses in the contracts of the Bricklayers, Laborers, and Operating Engineers stated:
PICKETS, BANNERS AND STRIKES. The Employer may not request or instruct any Employee except Watchmen or Supervisory personnel to go through a picket line except to protect life or property. The Unions agree that there shall be no cessation of work or any recognition of picket lines of any union without first giving prior notice to the Employer or his Association.
The picket line clause in the Plumbers’ contract was worded differently:
Refusal to pass through a lawfully permitted picket line will not constitute a violation of the agreement.
Before the arbitrator the Unions maintained that their members’ refusal to enter the jobsite through the neutral gate was protected by the picket line clauses and that the work stoppage was not secondary activity. The Employers argued that the picket line clauses, under the Unions’ construction, were secondary boycott provisions violative of Section 8(e) of the Act.
On 5 June 1974 the arbitrator decided that the Johnson and Gorham employees could determine that the primary picket line of the Electrical Workers at the Design gate actually existed at the Johnson and Gorham neutral gate, and their decision not to enter the jobsite through the Johnson and Gorham neutral gate was protected under the picket line clauses. In rejecting the contention that no picket line existed at the neutral Johnson and Gorham gate, the arbitrator found:
The question whether a picket line exists [at the Johnson and Gorham gate] is one of fact. The evidence presented at the hearing established that the individual employees resolved that question of fact by deciding that the picket observed was a picket that they would honor.. The neutral arbitrator finds, therefore, that the decision to regard the Local 110 [Electrical Workers’] banner as a picket line affecting them was a decision made by the individual employees who refused to work and that the decision was one that they might reasonably make under these circumstances. The employees themselves have decided that a picket line exists even at the neutral gate. The neutral arbitrator holds that the picket line clause protects that decision as one reasonably made and not contrary to law.
He also found that “none of the Unions had taken the position or attempted to enforce or apply an illegal picket line clause within the meaning of the proscription of Section 8(e) of the Federal Act.”
On the next day (6 June 1974) the Unions posted almost identical notices to their members advising them of the arbitrator’s decision and stating:
Accordingly, under our contract, you have the right to decide whether or not to work on this job in the presence of the Electricians Local 110 banner. It is up to you to decide whether to honor or not the Electricians’ banner.
Thereafter AGC filed unfair labor practice charges against the Unions alleging that the picket line clauses violated Section 8(e) of the Act. On 30 August 1974 AGC, Johnson, and Gorham also filed a motion with the District Court to vacate the arbitrator’s award, alleging that the underlying contracts violated Section 8(e). On 23 December 1974, the District Court denied the motion to vacate and deferred the Section 8(e) issue to the Board.
C. The Decision of the Board
The Board found that the picket line clauses of the Bricklayers, Laborers, Engineers, and Plumbers were in violation of Section 8(e) of the Act. The Board found that the picket line clauses of all four Unions were “entered into” under Section 8(e) for the purposes of Section 10(b)’s six month statute of limitations by consistently maintaining the position, accepted by the arbitrator, that these clauses protected their members from discipline for refusing to enter the job site through the neutral gate at the Elk River School District project. The Board found that the picket line clauses in the contracts of the Bricklayers, Laborers and Operating Engineers violated Section 8(e) as written because the clauses on their face were broad enough to sanction refusals to cross secondary picket lines. The Board further concluded that all four picket line clauses, including the Plumbers’ clause, violated Section 8(e) when they were construed by the arbitrator to protect employees from discipline for refusing to pass through a neutral gate when a primary picket line was stationed elsewhere on the common work situs. The Board also concluded that these picket line clauses, as interpreted, were not saved from illegality under Section 8(e) by the construction industry proviso to that Section.
Thus, in issuing the order here under review, the Board decided four issues emanating from the dispute described in Part I. A., supra: 1) that the relevant portions of the contract clauses in issue were “enter[ed] into” within the time period specified in Section 10(b) of the Act; 2) that the picket line clauses in the contracts of the Laborers, Bricklayers, and Engineers were per se violative of Section 8(e); 3) that the picket line clauses in all four Union contracts (including that of the Plumbers) were, as interpreted by the arbitrator, violative of Section 8(e); and 4) that the picket line clauses in all four contracts were not saved by virtue of the construction industry proviso to Section 8(e). We agree with the Board on all four points, and we shall examine each of these issues in this order in our analysis which follows.
II. ANALYSIS
A. Statute of Limitation
Section 10(b) of the Act states that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board....’, Section 8(e) makes it an unfair labor practice for an employer and a union “to enter into” a so-called “hot cargo” clause; this section has been interpreted to cover the reaffirmation or reentering into of a hot cargo clause within the six month limitation period prescribed in Section 10(b). Since the picket line clauses at issue in this case were executed outside the Section 10(b) period, reaffirmation of the clauses within the Section 10(b) period is a precondition to unfair labor practice liability.
The Board found that the picket line clauses had been reaffirmed within the Section 10(b) period because the Unions had consistently “maintained... the continued enforceability of [the] clauses” during the course of the arbitration proceedings, and, of course, willingly accepted and sought to utilize the broad interpretation of the clause accorded by the arbitrator. In drawing this conclusion, the Board relied on its repeatedly articulated position that reaffirmation of a disputed clause can be “evidenced by arbitration proceedings wherein the parties are disputing the interpretation to be given that clause.”
The Unions attack the Board’s finding as to reaffirmation on two grounds: First, the Unions contend that there was no reaffirmation because they were compelled to proceed to arbitration by an order of the District Court. In the Unions’ view, they were reluctant and unwilling participants in the arbitration proceedings and therefore did not voluntarily “enter into” an agreement within the meaning of Section 8(e). Secondly, the Unions seek to set aside the finding as to reaffirmation by pointing to the decision of the arbitrator construing the picket line clauses as protecting only lawful primary conduct, not employee refusals to honor an illegal secondary picket line. That is, the Unions contend that their activities were outside the section 10(b) period because of the arbitrator’s decision that the clauses were not illegal. We reject both of the arguments put forth by the Union with respect to the reaffirmation of the picket line clauses.
The Unions’ argument that there was no reaffirmation because the arbitration proceeding was compelled by an order of the District Court is deficient in several respects. This argument does not contest the notion that arbitration proceedings can serve as sufficient evidence of reaffirmation; rather, the Unions contend that they must be legally excused from the consequences of their reaffirmation because they were “acting under compulsion of a presumptively valid Court order...,” Thus, the Unions’ argument is one based on the unfairness of having to defend the picket line clauses in an arbitration proceeding in which they did not desire to participate. This argument ignores the fact that the Unions had contractually agreed to the arbitration procedure that was implemented by the District Court order. Thus, although it is true that the Unions did not desire to arbitrate this particular dispute, they had bound themselves to the arbitration concept in their contracts with their employers. This decision of the Unions to insert an arbitration clause in their respective contracts was presumably arrived at as the result of an arms-length bargaining process in which all parties to the contract exercised the prerogatives attendant to the concept of freedom of contract.
The Unions suggest that the order of the District Court coerced them into a defense of the picket line clauses before the arbitrator and that this coercion violates the due process rights of the Unions. To the extent that a coercion argument would have any relevance in this context, it would have to focus on the bargaining process leading to the inclusion of the arbitration clauses in the various contracts. No such coercion is alleged or suggested by the Unions; given this, the order of the District Court emerges simply as a technique to effectuate the intent of the parties as embodied in their contractual understanding.
In addition to the argument that the District Court’s order somehow represented an unwarranted coercion of the Unions to arbitrate the dispute, the Unions suggest that the mere fact that there was an arbitration proceeding forced them to defend the picket line clauses as being lawful. That is, the Unions contend that AGC’s conduct in bringing the unfair labor practice charge which eventually led to the court-ordered arbitration “invited and caused the asserted [reaffirmation].” The Unions appear to believe that their position with respect to the lawfulness of the picket line clauses was dictated by the conduct of the charging party, and that, therefore, they should not be held legally responsible for the reaffirmation of the clauses before the arbitrator.
This is, of course, a mistaken belief; the Unions were free to pursue any arguments or lines of reasoning they chose to at the arbitration proceeding. While in practical terms it may be inevitable that a union will defend the legality of its actions once a dispute arises and arbitration commences, the Unions cannot be heard to disclaim responsibility for its position merely because another party initiates action to trigger the contractually-based arbitration procedures. Thus, the Unions are fully responsible for the position they took in defending the legality of their members’ actions and this defense constitutes a reaffirmation of the disputed clauses under well-established precedent. For the Unions to attempt to escape responsibility for their position by presenting a defense of coercion or compulsion is to attempt to deny the employers the rights granted to them in the bilateral contracts.
As the second ground for attacking the Board’s finding of reaffirmation, the Unions argue that there was no reaffirmation because the arbitrator interpreted the clauses as applying to lawful activity. In this argument, the Unions appear to draw a distinction between the reaffirmation of a lawful picket line clause and the reaffirmation of an unlawful picket line clause; in the Unions’ view, the former does not constitute a reaffirmation for purposes of the Section 10(b) statute of limitations. The Unions’ position is, in effect, that they had no intent to reaffirm an illegal picket line clause; the assumption is that the Unions would not have reaffirmed the clauses if they had known them to be illegal. Since the Board found the clauses to be illegal after the reaffirmation before the arbitrator, the Unions believed that the reaffirmation cannot be attributed to them.
The Board pierced and destroyed this argument quite accurately and thoroughly when it stated that the Unions’ position
goes to the merits of the alleged violation and not to the question of whether [the Unions] have reaffirmed the clauses. Indeed, [the] position contains its own admission that [the Unions] continue to reaffirm the effectiveness of the clauses— albeit only against primary activity.
Reaffirmation and legality represent two distinct analytical concepts and two distinct stages of analysis in this context, each with different concerns and purposes underlying them.
The Unions appear to misconceive the concerns underlying the reaffirmation concept. In analyzing a reaffirmation question, a court will look to see if there are “acts of continued enforcement of a contract” in order to determine if the relevant party is insisting upon the continued viability and legality of the clause. If the party continues to rely on the disputed clause, it is then appropriate for another party to instigate an unfair labor practice charge in order to resolve a contrary interpretation of the clause which he may entertain. Under the terms of Section 10(b), if such a charge is filed within six months, the Congressionally chosen time constraints have been satisfied.
In the context of this case, the charging party (AGC) could with confidence be assured by the position taken by the Unions before the arbitrator and by their actions taken thereafter in advising their members of the members’ “right” to engage in a work stoppage that the Unions continued to insist and believe that the picket line clauses protected the members from discipline or discharge. Under such conditions, the charging party could be confident that it was not initiating a conflict resolution process in which the party being charged no longer adhered to its disputed contractual interpretation. The actions taken by the Unions (for which actions they are fully responsible) indicate clearly that the Unions reaffirm their position that the picket line clauses protected the choices of the individual members not to enter the neutral gate.
The subjective intent or evaluation of the parties as to the legality of the disputed clauses is irrelevant to the question of whether the parties have manifested a reaffirmation of the clauses. The question of the legality of contractual clauses is vested in various bodies at different stages in the resolution of a dispute — the arbitrator, the Board, and the courts are vested with the authority to make these legal determinations with varying degrees of finality. Reaffirmation serves the purpose of ensuring that a dispute is properly before one of these bodies for decision; it does not depend on the substantive legal decision reached by one of the bodies or on the subjective speculation of the parties as to the question of legality.
Therefore, the Unions’ argument that there was no reaffirmation because the Unions and the arbitrator believed the clauses to be lawful as applied is irrelevant. What is relevant is that there were identifiable acts of reaffirmation which convince us that the disputed clauses were reentered into within six months of the filing of the charges by AGC.
B. Facial Invalidity
The Board found that the picket line clauses in the contracts of the Laborers, Bricklayers, and Engineers were violative of Section 8(e) on their face. The Board has repeatedly held that to the extent that picket line clauses are “broad enough to apply to secondary picketing having no connection with disputes concerning jobsite subcontracting, [such clauses are] prohibited by Section 8(e)... It is clear that the clauses of the Laborers, Bricklayers, and Engineers are broad enough, on their face, to apply to such prohibited conduct. In this appeal the Unions state that for the purpose of the argument here the three clauses can be taken to be “overly broad on their face.”
The picket line clause in the Plumbers’ contract, which refers only to refusals “to pass through a lawfully permitted picket line,” does not suffer from the same facial invalidity as do the other clauses, and this distinction was properly recognized by the Board. The controversy before the court at this time does not focus on this issue of facial invalidity; rather, the parties disagree as to the legality of the four clauses as interpreted and applied by the arbitrator.
C. Interpretation and Application of the Picket Line Clauses
The Board found that the picket line clauses in the contracts of all four unions violated Section 8(e) as interpreted and applied by the arbitrator. We agree with the Board’s conclusion.
In analyzing the question of the legality of the picket line clauses, we agree with the Unions that it is “necessary to ascertain whether the activity sought to be protected by the contract constitutes secondary activity under the Act.” While the Unions have correctly identified this major concern, they have at times focused on the wrong activity (the primary activity at the Design Electric gate) in presenting their arguments to this court. It is vital that the analysis be focused on the activity which is the object of the dispute and the resulting unfair labor practice charge. The relevant activity to be examined is the refusal of the individual employees to enter the neutral gate of the Johnson and Gorham employers. All the parties agree that the picket line established at the Design Electric gate by Local 110 was lawful primary activity; this characterization does not, however, advance the analysis of the nature and character of the activity that took place at the neutral gate. It is this activity directed at Johnson and Gorham, the neutral employers, that controls our disposition of this case. With the focus now set on the proper sphere of underlying conduct sought to be protected by the disputed contractual clauses, we may now turn to an exposition and application of the relevant legal principles to this conduct.
Analysis of the picket line clauses as interpreted by the arbitrator must begin with the well established principle that separate contractors working on a construction site are not engaged in a joint enterprise, but instead retain their independent status. In particular, on the Elk River project there were no contractual relationships at all between Johnson, Gorham and Design Electric. Each contractor was on the project under contract with the School District as a result of being the successful bidder pursuant to competitive bidding required by Minnesota law on public projects.
Simply because contractors are on a common construction site, a Union may not picket or strike a neutral contractor because the Union has a dispute with another prime contractor on the construction site. The concept of separate gates is now well established as a means of isolating the dispute to the primary contractor, thus to avoid enmeshing the neutral contractor in the dispute. With the concept of separate gates in operation, it follows that a picket line at the neutral gate is the same in law as a picket line at a totally different job site, i. e., it must be justified (or not) by whatever is going on at that job site or behind that neutral gate. By definition a neutral gate is for employees of neutral — uninvolved— employers. It follows, therefore, that a picket line on a construction site maintained at the neutral employer’s gate constitutes secondary activity and is therefore a violation of Section 8(b)(4)(B) of the Act. Picket line clauses which seek to protect such secondary activity are in violation of Section 8(e) of the Act.
Under Section 8(e) an agreement between a neutral employer and a Union that Union members can refuse to handle goods (“hot cargo”) produced by an employer whose employees are on strike is an unfair labor practice. Similarly, under Section 8(e) an agreement allowing the employees of a neutral employer to strike in support of a primary strike is also an unfair labor practice. While the triggering event in such a case is a primary strike or dispute between the struck employer and its employees, the secondary strike or refusal by the employees of the neutral employer to handle the goods is secondary activity, with the objective of causing the neutral employer to cease to do business with, or to refuse to handle the goods of, the struck employer.
A similar analysis is appropriate with respect to determining whether picket line clauses are void under Section 8(e). While the picket maintained by Local 110 at the Design gate was primary as to Design, there is no disagreement that the same picket, if stationed at the Johnson-Gorham neutral gate, would be secondary because the primary dispute was with Design. It cannot be disputed that the picket line clauses would not protect the Union members in refusing to cross a picket line maintained by Local 110 at the neutral gate.
The arbitrator, in his decision, apparently decided that Local 110 was in some manner picketing at the Johnson and Gorham gate, as well as at the Design gate. While somewhat confusing, the arbitrator appears to say the contract clauses allow the employees to determine that a picket exists at a location where in fact one does not exist (at the Johnson-Gorham gate), and then to refuse to cross that non-existent picket line. However, any picket line maintained by Local 110 at the Johnson-Gorman gate — whether deemed “factual,” “imaginary,” or otherwise — any such picket line would be a secondary picket line. The designation of a “neutral gate” is precisely to avoid a picket line being placed at such neutral gate, i. e., to say that there is no reason or legal right for any picket line to be placed here, because this gate is to be used by employees of an employer who, it is agreed, has no connection with a dispute going on elsewhere. Thus the picket line clauses as interpreted and applied by the arbitrator were clearly in violation of Section 8(e) as having authorized in advance a refusal to cross a secondary picket line.
In support of their position that the picket line clauses were interpreted to protect only lawful activity in this case, the Unions characterize the conduct of their members as “a lawful response to primary activity” and as “permissible secondary effects of lawful primary activity.” The Unions contend that “the nature of the activity giving rise to the effect is the critical point of inquiry.” That is, the Unions would have us focus on the primary activity at the Design Electric gate, activity which is admitted to have been legal by all parties to this case. Since the refusal of the employees to enter the neutral gate can be said to have had its genesis in this lawful activity, the Unions believe that the refusal to enter through the neutral gate must be accorded lawful status because it is a “response” to or an “effect” of the legal primary activity at the Design Electric gate.
The theory put forth by the Unions is both analytically unsound and contrary to national labor policy. Perhaps this is best seen by reference to the Unions’ reply brief, wherein they sum up the heart of their argument, “The relevant focus of the inquiry for purposes of Section 8(e) is the character of underlying conduct sought to be protected, rather than its net result. Where, as here, the underlying conduct is lawful primary activity, enforcement of contractual language protecting such activity through arbitration must be deemed lawful.” The fatal flaw in this argument is that, while the underlying conduct sought to be protected is claimed to be the lawful primary activity, analytically this is not accurate. It is true that the picket protection clause also includes a protection of lawful primary activity at the Design Electric gate, and this is a legitimate objective, but the picket protection clause here includes an attempted protection of conduct at the neutral gate for Johnson and Gorham employees. This is the “underlying conduct,” the conduct of the Johnson-Gorham employees at the neutral gate, which is sought to be protected here.
This is what the dispute is all about. The “underlying conduct” which is “sought to be protected” here is not the primary picket line at the Design Electric gate, but the “responses” to the “lawful primary activity,” i. e., the refusal to enter at the neutral gate. There is nothing sought by either the Unions or the employers, nothing in dispute, which will affect in any way the picket line at the Design Electric gate, or the response of Design Electric employees or other workers to that picket line at that gate. It was uncontradicted at oral argument that the underlying conduct here in dispute and sought to be protected by the picket protection clause was indeed the conduct, the response, of the individual workers at the neutral gate; otherwise, there is no purpose to this case.
This “response,” this “underlying conduct,” at the neutral gate cannot be other than secondary conduct, whether the picket line be conceived of as “imaginary” or established there by live persons. It cannot be protected by the picket clause, because secondary conduct, whether in response to legitimate primary activity or in response to illegitimate secondary activity (for example, picket line, real or imaginary), is illegal under both 8(b)(4)(B) and 8(e). The failure to limit the picket clauses to lawful responses makes them per se unfair labor practices.
A contrary decision would undermine the right of the independent contractors to remain neutral in a labor dispute in which they were not involved. Unless national labor policy is changed so as to abrogate this right, we must analyze cases such as this one with this right to remain neutral as a factor in the analysis.
The Unions also contend that the arbitrator’s interpretation of the picket line clauses is outside the reach of Section 8(e) because the clauses protect only individual refusals to cross picket lines, not union-induced refusals. In the Unions’ view, if there is no evidence of inducement, the clauses “cannot be said to sanction [secondary conduct.].” However, inducement, whether by unions or individuals, is simply not an element of a Section 8(e) violation. Section 8(e) prohibits the entering into of contract terms sanctioning a secondary boycott. This court reached this conclusion in Truck Drivers Union, Local No. 413 v. NLRB, holding that “there is no merit to the union’s suggestion that this case is outside the reach of Section 8(e) because it protects individual refusals, not union-induced refusals. We read our own cases as having rejected this argument.... ” To engraft inducement as an element of a Section 8(e) violation would resurrect Local 1976, Carpenters v. NLRB (Sand Door), the decision which Congress overruled in enacting Section 8(e) as part of the Land-rum-Griffin Amendments to the Act. In Sand Door the Supreme Court held that, while the secondary boycott provisions prohibited union inducement of employees to refuse to handle goods or perform services to force their employer to cease doing business with another employer, they did not proscribe a voluntary agreement between an employer and a union to boycott another employer. Section 8(e) was enacted to remedy this loophole in the statutory scheme by prohibiting voluntary agreements to engage in secondary boycott conduct.
In summary, the arbitrator’s interpretation of the Unions’ picket line clauses sanctions impermissible secondary conduct in ruling that the employees of the neutral contractors Johnson and Gorham could decide that a picket line existed at the neutral gate and that it was permissible for them to refuse to work. The Board properly refused to permit the Unions to do “by indirection what they can’t obtain directly, that is, achieve contractual protection for the employees when refusing to enter the premises of a neutral employer because another employer is involved in labor problems on the same jobsite.” The refusal to enter the neutral gate cannot be considered lawful activity without doing violence to the careful balance of the rights and responsibilities of unions and employees as delineated by the Supreme Court in NLRB v. Denver Bldg, and Construction Trades Council.
D. The Construction Industry Proviso
Congress exempted from Section 8(e) those agreements “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”. The Board found that the picket line clauses here under review were not saved from illegality by the construction industry proviso, which “as an exception to the Landrum-Griffith Act’s overriding aim to prohibit secondary boycotts is [to be] strictly construed.”
In making construction site hot cargo clauses lawful, Congress left standing the Supreme Court’s decision in NLRB v. Denver Bldg. Trades Council, which declared unlawful the picketing of a neutral employer on the construction site with the object of making the project an all-union job. Congress made clear its intention that such construction site clauses could only be enforced by lawsuits and not by strikes or other economic action.
The instant picket line clauses, as interpreted by the arbitrator, immunize employees of neutral employers from discipline or discharge for refusing to work on a construction site whenever there is a primary picket line somewhere on the site. The neutral employers will be subjected to strike (economic) pressure to seek the removal of the offending primary employer from the construction site whenever their employees adopt the course sanctioned by their collective agreement. In the Muskeg-on Bricklayers case, the Board stated:
We can see no difference in practical effect in terms of prohibited self-help between a situation where a union induces employees to strike after employer violations of a lawful “hot cargo” clause in order to remedy such breach, clearly unlawful action, and a situation where, in order to prevent such breach, the union tells the employees that if the employer should violate the “hot cargo” clause in the future the employees may cease work with impunity. The latter is the effect of Respondent’s proposed “hot cargo” clause.
While it is true that the Unions here did not expressly urge their members to strike in support of the Electrical Workers Union’s protest, the operation of the picket line clauses in conferring advance permission to Union members to refuse to work has the same effect as if the Unions had urged a strike. Thus, under the arbitrator’s interpretation, the picket line clauses look to the Unions’ members to enforce these secondary picket line clauses through economic self-help action and not to judicial enforcement, as Congress intended when it legitimized hot cargo clauses in the construction industry. Indeed, the negotiation of picket line clauses permitting employees to refuse to cross secondary picket lines with impunity contemplates, as the Sixth Circuit indicated in similar circumstances, “strike action sanctioned by the union in advance rather than at the moment of breach.”
In summary, the instant picket line clauses, which are designed to insure that union standard wages are paid by all of the multiple employer contractors on any construction project where the Unions’ members are employed, are secondary boycott provisions. In providing that employees can honor secondary picket lines without being disciplined, the clauses sanction work stoppages to enforce the Unions’ objectives. This sanctioning of economic pressure takes these clauses outside the narrow construction industry exemption and therefore the clauses violate Section 8(e) of the Act.
CONCLUSION
The Unions’ arguments in this case are based on misconceptions as to the proper analytical stance to assume when examining the undisputed facts of the ease. A properly focused analysis of the facts in this case must center on the actions of the individual Union members in refusing to enter the neutral gate on the Elk River construction site. The Board concluded, and we agree, that this action was illegal secondary conduct. Since the Unions had entered into and reaffirmed the validity of picket line clauses which were interpreted as sanctioning this impermissible secondary activity, the clauses must fall as being violative of Section 8(e) of the Act. Accordingly, the
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
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songer_typeiss
|
B
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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.
Alexander McDONALD, Libelant-Appellant, v. UNITED STATES of America, Respondent-Appellee, and Bethlehem Steel Company, Impleaded Respondent-Appellee.
No. 14086.
United States Court of Appeals Third Circuit.
Argued Feb. 5, 1963.
Decided Aug. 1, 1963.
Seymour Margulies, Jersey City, N. J. (Herbert Winokur, Levy, Lemken & Margulies, Jersey City, N. J., on the brief), for libelant-appellant.
M. E. DeOrehis, New York City (Connell & Corridon, Jersey City, N. J., Haight, Gardner, Poor & Havens, Stephen K. Carr, New York City, on the brief), for respondent-appellee.
John F. Lynch, Jersey City, N. J. (O’Mara, Schumann, Davis & Lynch, James Dorment, Jr., Jersey City, N. J., on the brief), for impleaded respondent-appellee, Bethlehem Steel Co.
Before KALODNER, STALEY and SMITH, Circuit Judges.
WILLIAM F. SMITH, Circuit Judge.
This suit in admiralty for personal injuries was brought against the United States of America under the Public-Vessels Act, 46 U.S.C.A. §§ 781-790, and against the American Export Lines under 28 U.S.C.A. § 1333(1). The alleged grounds of liability were breach of warranty of seaworthiness, and negligence. The suit against Export Lines was dismissed before answer filed, on consent of the libelant. The remaining respondent impleaded the Bethlehem Steel Company, the libelant’s employer. The present appeal is from a final decree dismissing the. libel and the impleading petition.
The libelant, an employee of Bethlehem Steel, was injured on April 1, 1959, while, employed as a painter on the S.S. Exochorda. This vessel was formerly owned by Export Lines and had been out of service for approximately one-year. It was acquired by the United States on March 16, 1959, under a contract, pursuant to the terms of which Export Lines, as General Agent, was required to have the vessel completely overhauled, put in a state of repair, and deactivated, preparatory to its being-placed in the reserve fleet, commonly known as the “moth ball” fleet. This, extensive work was to be done in accordance with NSA Order No. 64 (OPR-4Revised) and specifications prepared by-Export Lines. The contract for the work, was awarded to Bethlehem Steel,
The vessel was towed to the shipyard’ of Bethlehem Steel without steam or-power, and without a crew. It was delivered at the shipyard on March 16, and' on the following day was placed in dry-dock, where it remained until March 20, when it was refloated and moored at. pier side, where it remained until shortly - after noon on April 1, the date of the-accident. The work on the vessel was.. performed during the period from March. 17 until April 1, inclusive, during which time the vessel was in the exclusive;possession and control of Bethlehem Steel.
While the work was in progress there were several crew members, employed by Export Lines, on board from day to day, but their only responsibility was to inspect the work and to see that it was performed in accordance with the specifications; they exercised no control over the work or the manner of its performance. Export Lines also maintained an hourly security watch to protect the gear and equipment of the vessel against pilferage.
The accident occurred approximately four to five hours before the S.S. Exochorda was to be redelivered to Export Lines. The necessary repairs were near completion and the vessel had been completely deactivated. The trial judge found: “ * * * the vessel’s stern tube was disconnected and filled with preservative; her tail shaft was secured to prevent the turning of the propeller; her sea chests and all underwater overboard discharge lines were permanently blocked off; one shot of chain was disconnected from both the port and starboard anchor chains; the shaft alley drain well was cleaned out; the ship’s gangways were stowed in a lower hold; life boats were removed and stowed in a lower hold; the radar scanner was dismantled, and all storage lockers were permanently sealed off.” These findings are amply supported by the evidence.
It was on the basis of the facts herein-above outlined that the trial judge con•cluded that the S.S. Exochorda had been deactivated and withdrawn from navigation and that under the circumstances there was no implied warranty of seaworthiness. It is argued on behalf of the libelant that this conclusion was •erroneous. The argument is without .merit.
Claim Based on Warranty op Seaworthiness
We recognize at the outset, as we must, that under the implied warranty of seaworthiness the shipowner is under a duty to maintain the vessel, its gear and appurtenances, reasonably safe and suitable for the purposes intended. This duty, which is absolute and nondelegable, is owed not only to the members of the crew but also to the shore based employees of an independent contractor engaged aboard ship in work customarily performed by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). However, it has been authoritatively settled, if it was ever in doubt, that the implied warranty may not be invoked as a basis of liability where the vessel has been withdrawn from navigation and is undergoing extensive renovation and repairs. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); Latus v. United States, 277 F.2d 264 (2d Cir., 1960), cert. den. 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960). It has been held that in these circumstances there is no warranty of seaworthiness. Ibid.
It is argued on behalf of the libelant that the cited cases are distinguishable because of their “converse fact situation [s].” The vessels involved in each of the cited cases had been withdrawn from the “moth ball” fleet and, at the time of the accidents in which the workmen were injured, were undergoing extensive repairs preparatory to their reactivation and return to maritime service. We fail to perceive any validity in this attempted distinction. The rule of the WEST case was applied in Noel v. Isbrandtsen Company, 287 F.2d 783 (4th Cir., 1961), cert. den. 366 U.S. 975, 81 S.Ct. 1944, 6 L.Ed.2d 1264 (1961), a case in which a workman sustained injury while the vessel was undergoing repairs and deactivation, as in the present case. The libelant’s argument, and the reasons advanced in support of it, are clearly without merit.
We should emphasize that the decision of the Supreme Court in the WEST case was predicated not only on the fact that the vessel had been withdrawn from maritime service but also on the further fact that it was “undergoing major repairs and complete renovation” at the time the workman sustained injury. Therein the Court stated, 361 U.S. at page 122, 80 S.Ct. at page 192, 4 L.Ed.2d 161: “This undertaking was not ‘ship’s work’ but a complete overhaul of such nature, magnitude, and importance as to require the vessel to be turned over to a ship repair contractor and docked at its pier for the sole purpose of making her seaworthy. It would be an unfair contradiction to say that the owner held the vessel out as seaworthy in such a case.” The rule of the case must be applied where, as here, the vessel has been withdrawn from maritime service and is undergoing extensive overhaul and repair preparatory to its deactivation. Noel v. Isbrandtsen Company, supra.
The shipowner’s liability under the warranty of seaworthiness is dependent upon not only the specific task being performed by the workman at the time of injury but also the nature and scope of the work in which he and other shore based employee’s are engaged. West v. United States, supra; United N. Y. & N. J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952); Berryhill v. Pacific Far East Line, 238 F.2d 385 (9th Cir., 1956), cert. den. 354 U.S. 938, 77 S.Ct. 1400, 1 L.Ed.2d 1537; Raidy v. United States, D.C., 153 F.Supp. 777, affd. 252 F.2d 117 (4th Cir., 1958), cert. den. 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958). See also Latus v. United States, supra. The warranty of seaworthiness does not extend to a shore based employee who, at the time of injury, was engaged with others in the general overhaul and renovation of a vessel temporarily withdrawn from maritime service. Such work is customarily performed in a shipyard equipped for the purpose, and is not work traditionally performed by seamen. Ibid.
Claim Based on Negligence
The libelant charges that the respondent was negligent in that it failed to exercise reasonable care to furnish him with a safe place to work. The trial judge concluded, on findings of fact supported by substantial evidence, that the respondent owed no duty to the libelant. This conclusion is challenged as erroneous.
The accident occurred on the morning of April 1, shortly after 7:30 A.M., while the S.S. Exochorda was still in the possession and control of Bethlehem Steel. The libelant and another workman, accompanied by their foreman, descended from the main deck to the ’tween deck, where they made an inspection of painting work which had been completed in the laundry on the previous day. Then, intending to return to the main deck by way of a ladder located in a cargo hold, they walked along a lighted passageway into the hold, which was in semidarkness, the portable lights having been removed the previous day. As the libelant proceeded across a hatch cover, he fell through an opening which had been created by the removal of two boards. There was some conflict in the testimony as to who had removed the boards. However, the trial judge found that the boards had been removed during the night prior to the accident by employees of Bethlehem Steel on the orders of a job supervisor.
The shipowner in possession and control owes a duty of reasonable care to workmen who come aboard the vessel to make repairs. The duty is to exercise reasonable care to furnish the workmen with a safe place to work. Mesle v. Kea Steamship Corporation, 260 F.2d 747 (3rd Cir., 1958), cert. den. 359 U.S. 966, 79 S.Ct. 875, 3 L.Ed.2d 834 (1959); Brabazon v. Belships Co., 202 F.2d 904 (3rd Cir., 1953). However, the test of the shipowner’s responsibility is possession and control. Where, as here, possession and control of the vessel are relinquished to an independent contractor, the shipowner owes no duty to the contractor’s employees. West v. United States, and Latus v. United States, supra. It was said by the Supreme Court in the WEST case, 361 U.S. at page 123, 80 S.Ct. at page 193, 4 L.Ed.2d 161: “It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe.”
The libelant argues that possession and control of the S.S. Exochorda was retained by the respondent. The trial court found otherwise, and this finding, supported as it was by substantial evidence, cannot be held “clearly erroneous” under the rule of McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954). The libelant’s argument rests on a rather tenuous factual basis which does not warrant discussion.
Exclusion of Deposition
At the conclusion of the respondent’s case the libelant offered in evidence, by way of rebuttal, portions of a deposition. This deposition was that of a mate employed aboard the S.S. Exochorda while the work of renovation and deactivation was in progress. The offer of proof was rejected, and thereupon the libelant withdrew the deposition and did not make it a part of the record. It has been established that under these circumstances we are not required to consider the assignment of error predicated on the exclusion of the deposition. Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 87 L.Ed. 645 (1943). We have nevertheless considered the question raised on the merits.
The mate was in attendance throughout the trial but was not called as a witness by either party. However, the libelant argues that the deposition was that of a “managing agent,” and was therefore admissible under Rule 30A(d) (2) of the Rules of Practice in Admiralty and Maritime Cases, as amended, 28 U.S.C.A. We do not agree. The mate was not per se a “managing agent” within the meaning of the rule. The admission of his deposition would have been error. Naylor v. Isthmian S.S. Co., 187 F.2d 538, 540 (2d Cir., 1951); see also Santiago v. American Export Lines, Inc., 30 F.R.D. 372 (S.D.N.Y.1962). It appears from the undisputed testimony in the record that the position of the mate was that of an inferior officer who had no supervisory authority and acted under the supervision and direction of his superior, a port engineer in the employ of Export Lines. It is clear that under these circumstances it cannot be held that the mate was a “managing agent.” Ibid.
The judgment of the District Court will be affirmed.
. 32(a) C.F.R. 317, et seq. (1958 Revision).
. Ibid.
. Work in the hold had been completed on. March 31, and after its completion the portable lights were removed and the main hatch was covered by the employees of Bethlehem Steel.
. The brief of the appellant incorrectly cites as authority the Federal Rules of Civil Procedure.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_r_fed
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
HOUSEHOLD GOODS FORWARDERS TARIFF BUREAU, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
No. 91-1350.
United States Court of Appeals, District of Columbia Circuit.
Argued April 23, 1992.
Decided June 30, 1992.
Alan F. Wohlstetter, with whom Stanley I. Goldman was on the brief, for petitioner.
Michael L. Martin, Atty., I.C.C., with whom James F. Rill, Asst. Atty. Gen., Robert B. Nicholson, John P. Fonte, and John C. Filippini, Attys., Dept, of Justice, and Robert S. Burk, General Counsel and Craig M. Keats, Associate General Counsel, I.C.C., were on the brief, for respondents. Ellen D. Hanson, Atty., I.C.C., also entered an appearance, for respondents.
Before RUTH BADER GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
The Household Goods Forwarders Tariff Bureau (HGFTB) appeals the decision of the Interstate Commerce Commission (ICC or Commission) to revoke its antitrust immunity. Because the Commission applied the correct standard in evaluating the need for an antitrust exemption and because the Commission adequately articulated its reasons for revoking the immunity, we deny HGFTB’s petition for review.
I.
The Household Goods Forwarders Tariff Bureau (HGFTB) is a rate bureau for household goods freight forwarders. A domestic freight forwarder is a common carrier that assembles and consolidates smaller shipments at origin, sorts them for delivery at destination and arranges for a motor or rail carrier to perform the line-haul transportation between the assembly and distribution points. 49 U.S.C. § 10102(9). The forwarder “assumes responsibility for the transportation from the place of receipt to the place of destination.” Id. This case concerns “household goods” (HHG) freight forwarders. HHG freight forwarders handle used household goods, unaccompanied baggage and used automobiles. Id. § 10102(12).
As common carriers subject to the ICC’s jurisdiction, HHG freight forwarders must file tariffs with the ICC setting forth their rates and charges. During the nineteen year period preceding the Commission action leading to this appeal, i.e. from 1972-1991, the rates for HHG freight forwarders were set collectively by HGFTB. HGFTB was exempted from the antitrust laws for this purpose. See Household Goods Forwarders Tariff Bureau-Agreement, Section 5a Application No. 106 (ICC Apr. 25, 1972) (1972 Decision).
Another transporter is the “household goods motor carrier.” An HHG motor carrier transports HHGs from place to place. HHG motor carriers have their own authorized rate bureau, the Household Goods Carriers’ Bureau (HGCB), which collectively sets rates. HHG freight forwarders, in conducting their business, utilize the services of HHG motor carriers. The cost of motor carrier service is a major component of HHG forwarder rates. See Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 at 6 (ICC June 5, 1991) (1991 Decision).
The controversy in this case involves the legislative and regulatory history of common carrier antitrust exemptions. In the 1940s, Congress passed the Reed-Bulwinkle Act, Pub.L. No. 80-662, 62 Stat. 472 (1948) (current version at 49 U.S.C. § 10706), which gave the ICC the authority to grant antitrust immunity to common carriers’ collective ratemaking to the extent the Commission determined such arrangements to be in the public interest. According to the Act, in order to receive antitrust immunity, a group of carriers must submit its collective ratemaking agreement to the Commission for approval and must demonstrate that the agreement will further the national transportation policy (NTP). 49 U.S.C. § 10706(a)(2)(A).
As part of its deregulation trend, however, Congress has directly limited the ability of many types of carriers to engage in collective conduct. See generally Central & S. Motor Freight Tariff Ass ’n v. United States, 757 F.2d 301, 309-12 (D.C.Cir.), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985). The Motor Carrier Act of 1980, Pub.L. No. 96-296, 94 Stat. 793 (codified in scattered sections of 49 U.S.C.) (MCA 80), limited the degree to which HHG motor carriers could engage in collective ratemaking. Under the MCA 80, HHG motor carriers may no longer engage in most activities involving collective rate-making for single-line transportation. See 49 U.S.C. § 10706(b)(3)(D). Pertinent exceptions to this prohibition allow the HGCB to consider general rate increases and decreases as well as changes in commodity classifications and tariff structures. See id. § 10706(b)(3)(D)(i)-(iv). In addition, the legislation includes a presumption that any motor carrier rate bureau agreement falling within these exceptions will be granted antitrust immunity, unless the Commission finds that the agreement is inconsistent with the NTP. Id. § 10706(b)(2).
At the request of the freight forwarder industry, Congress passed the Surface Freight Forwarder Deregulation Act of 1986 (SFFDA), Pub.L. No. 99-521,100 Stat. 2993 (codified in scattered sections of 49 U.S.C.), which withdrew antitrust immunity for freight forwarders of general commodities. However, Congress acceded to the request of the HHG freight forwarders that their antitrust immunity remain intact. Because the antitrust immunity for HHG freight forwarders was unaltered by the 1986 legislation, they remain subject to the original prerequisite that they demonstrate that their agreements will further the NTP before they can receive antitrust immunity. See 49 U.S.C. § 10706(c).
Meanwhile, in January 1978, the Commission issued a decision reopening all previously approved non-rail collective ratemak-ing agreements to reevaluate whether those agreements continued to merit antitrust exemption. Reopening of Section 5a Application Proceedings to Take Additional Evidence, Ex Parte No. 297 (Sub-No. 4) (ICC Jan. 26, 1978) (Reopening Decision). Twelve years later, after reviewing the application submitted by the HHG freight forwarders in response to the Reopening Decision, the Commission issued a decision calling into question the HHG forwarders’ antitrust immunity. Household Goods Forwarders Tariff Bureau, Section 5a Application No. 106 (ICC Nov. 28, 1989) (1989 Decision). In conformance with a three-part test set forth in the Reopening Decision, the 1989 Decision directed HGFTB to establish (1) that its agreements would further the NTP and (2) that either (a) its agreements would not have anticom-petitive effects, or (b) if anti-competitive effects were found, the benefits to the public interest would outweigh those effects. Id. at 2; Reopening Decision at 3. The Commission proposed to apply the test using the standards it applied to HGCB agreements under MCA 80. The Commission explained:
Thus, in addition to the provisions of 49 U.S.C. 10706(b)(3)(D), generally prohibiting the voting on and discussion of single-line rates, we propose to examine the agreement with a view to, for example, protecting the right of independent action and guaranteeing that meetings and procedures be open and fair (see 49 U.S.C. 10706(b)(3)(B)(ii) and 49 U.S.C. 10706(b)(3)(B)(iv)-(vii)).
1989 Decision at 2-3. Although the Commission acknowledged that it was not required by statute to apply the additional standards to HHG forwarders, the Commission expressed the belief that because “freight forwarders exhibit many characteristics of motor carriers, ... the goals of the NTP, particularly those favoring increased competition, support application of comparable conditions and prohibitions.” Id. at 2.
HGFTB, in response, emphasized that it did not seek the blanket antitrust immunity conferred in 1972. Rather, the Bureau simply sought immunity for the same types of collective activity engaged in, with MCA 80 permission, by the HHG motor carriers. 1991 Decision at 3-4. HGFTB claimed that this protection was necessary to enable HHG freight forwarders to compete on a fair basis with HHG motor carriers. Id. HGFTB also claimed that allowing it to retain its antitrust immunity would further the NTP. Id. at 4.
In a 3-2 decision, the ICC concluded that HGFTB failed to meet its burden of establishing that its agreement would further the goals of the NTP. Id. at 6-7. The Commission therefore revoked the Bureau’s antitrust immunity. Id. at 7. The Commission found that HGFTB had not provided concrete evidence as to why its members required collective action to remain competitive, had failed to show that its collective activities would not be anti-competitive and had not demonstrated that the anticompetitive aspects of its collective activities would be outweighed by public benefits. Id. at 6-7. In arriving at its conclusions, the Commission relied on comments submitted by the Department of Defense (DOD) describing DOD’s experience employing HHG freight forwarders unaffiliated with the Tariff Bureau. The Commission reasoned that DOD’s experience showed that HHG freight forwarders can thrive without antitrust immunity. Id. at 6.
II.
HGFTB claims that the Commission’s decision to revoke its antitrust immunity was arbitrary and capricious in several respects. The Bureau first claims that because the Commission had previously granted it immunity and because the law has not changed since that time, there was no basis for the Commission’s reversal. It is undisputed that although the codification of the relevant statutes has changed over time, the substantive law concerning antitrust exemptions for HHG freight forwarders has not changed since HGFTB’s antitrust exemption was granted twenty years ago. The unchanged nature of the law, however, does not prohibit the Commission from reexamining whether an antitrust exemption continues to be justified. An agency may change its position as long as it provides a reasoned basis for its decision. See National Classification Comm. v. United States, 779 F.2d 687, 696 (D.C.Cir.1985). In this case, the Commission’s decision is well supported. The Commission adequately explained why HGFTB’s arguments failed to establish that the HHG freight forwarders’ agreement would further the goals of the NTP and why the agreement’s anticompetitive effects were not outweighed by benefits to the public.
HGFTB next claims that the test applied by the ICC is itself arbitrary and capricious. HGFTB claims that the Commission relied on these factors in revoking the exemption: (1) “no single-line collective activity would be approved for the HGFTB,” 1991 Decision at 2; (2) “household goods forwarder costs, dominated by the cost of underlying motor carrier transportation, is (sic) almost entirely variable in nature,” id. at 6; and (3) rate bureau rates are collectively set and are therefore anticompeti-tive, id. The Bureau claims that this test is arbitrary and capricious because it can never be met by an HHG forwarder. This argument misconstrues the nature of the ICC inquiry. As was noted above, the test applied by the Commission sought to determine whether HGFTB’s collective activities would further the NTP and whether these activities were either competitive or otherwise justifiable. Thus, rather than constituting the test itself, the three factors described earlier in this paragraph represent either non-decisional factors or the Corn-mission’s conclusions as to why HGFTB failed to meet the test’s requirements.
Looking at HGFTB’s objections separately, we note that although the Commission’s 1989 Decision stated that “no single-line collective activity would be approved for the HGFTB,” its 1991 Decision indicates that the Commission seriously considered HGFTB’s assertion that its limited activities should fall within an exception to the prohibition against single-line collective ratemaking. 1991 Decision at 2-3. The fact that HHG forwarders use only single-line rates was therefore not dispositive. The Commission’s decision to rescind HGFTB’s antitrust immunity was based instead on its conclusion that the Bureau’s collective activity did not “enhance the goals of the NTP”. 1991 Decision at 6.
HGFTB also complains that it was arbitrary and capricious for the Commission to deny it antitrust immunity on the ground that HHG forwarder costs are variable. It reasons that because HHG freight forwarder costs are in fact largely variable, the Bureau can never meet this aspect of the test. As was noted above, the Bureau confuses the ICC’s test with its particular application. The test requirement that the collective activity further the NTP can be met. The fact that HHG forwarder costs are largely variable led the Commission to the reasonable conclusion that destructive competition would be unlikely among household goods forwarders in the absence of antitrust immunity, and thus immunity would not further the NTP in that respect. 1991 Decision at 6-7.
In addition, the Commission’s finding that HGFTB’s collective activity is inherently anticompetitive does not automatically foreclose the possibility of an exemption. HGFTB was entitled to demonstrate that the public benefits of its anticompetitive activity justified an exemption. It failed to make this showing.
Finally, HGFTB claims that because the Commission applied the motor carrier standard in determining whether an antitrust exemption was warranted, it should have applied the motor carriers’ statutory presumption as well. This argument is without merit. The statute granting the Commission the authority to decide whether to shelter HHG forwarders’ collective action from the reach of antitrust laws allows the Commission to exercise its discretion in deciding whether an agreement furthers the NTP. See 49 U.S.C. § 10706(c). Thus, the Commission may properly choose to apply to HHG forwarders the same standard that Congress mandated it apply to motor carriers. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This is not true with respect to the burden the statute places on the Bureau. The law grants motor carriers a favorable presumption in that, if their agreement meets certain criteria and is not inconsistent with the NTP, an exemption will be granted. On the other hand, section 10706(c) commands that an exemption be granted to HHG forwarders only upon an affirmative showing that the HHG forwarders’ agreement will further the NTP. We therefore conclude that the Commission correctly refused to apply the motor carriers’ presumption to the proposed HGFTB agreement.
III.
For the foregoing reasons, the petition for review is
Denied.
. The NTP is defined at 49 U.S.C. § 10101(a).
. Single line rates are rates that involve only one carrier. 49 U.S.C. § 10706(a)(1)(B), (b)(1).
. Apparently, the Reopening proceeding was held in abeyance pending the disposition of several relevant legislative proposals.
. Specifically, HGFTB wants to be able to consider general rate increases and decreases, changes in commodity classifications and tariff structures.
In addition to these collective activities, MCA 80 allows the HGCB to publish member rates and perform other support services. HGFTB also wants to perform these support functions. The ICC, however, maintains that these types of support activities may be legally performed by the Bureau without an antitrust exemption. See 1991 Decision at 5.
. Although HHG forwarders utilize the services of motor carriers, because consumers may choose to transport their goods solely by motor carrier or to employ the full services of a forwarder, the two can be in some instances competitors.
. These reasons included the fact that when the Department of Defense refused to accept collectively set rates from freight forwarders, it reported a decrease in rates and an increase in efficiency. This evidence is sufficient to justify the agency's action. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)) (agency’s conclusions will be upheld if supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion").
. HGFTB argues that because Congress specifically allowed the HHG freight forwarders to keep their exemption when it enacted the SFFDA, the Commission must grant them an exemption. This misreads the SFFDA, in which Congress merely agreed to refrain from directly eliminating the exemption by statute.
HGFTB also argues that the Commission violated section 558(c) of the APA, 5 U.S.C. § 558(c), which conditions an agency’s power to revoke a license, by revoking the exemption "on the basis of new criteria under which it is impossible for any forwarder rate bureau to be approved” and failing to "apply the motor carrier standard which it announced would govern the HGFTB agreement.” HGFTB Brief at 43. This argument is without merit because, as we noted above, the Commission did not apply impossible criteria but did permissibly apply the motor carrier standard while refusing to apply the motor carrier presumption.
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_dueproc
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of the requirements of due process 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".
FERRIS et al. v. WILBUR, Secretary of the Navy, et al.
Circuit Court of Appeals, Fourth Circuit.
June 15, 1928.
No. 2692.
1. Injunction <@=>129(2) — Suit to enjoin storage of explosives held properly dismissed as to contractor employed only to construct depot roads.
Property owners’ suit against Secretary of the Navy and others to enjoin contemplated storage of large quantities of high explosives in the neighborhood of plaintiffs’ property held properly dismissed on the merits as to one employed only to construct roads in the development of the storage depot.
2. Injunction <@=>129(2) — Suit to enjoin storage of explosives held properly dismissed as to Secretary of the Navy, not served, nor resident of district, nor voluntarily appearing.
Property owners’ suit against Secretary of Navy and others to enjoin, contemplated storage of large quantities of high explosives in the neighborhood of plaintiffs’ property held properly dismissed as to Secretary of the Navy, not a resident of the district, nor served,, nor voluntarily appearing.
3. United States <@=>125(2) — Suit to enjoin storage of explosives held properly dismissed as one against United States to enjoin as nuisance exercise of discretion reposed in executive (Const. Amend. 5, and art. I, § 8, els. 12, 13, 17; Act July I, 1918 [40 Stat. 722]; President’s Proclamation Aug. 7, 1948; Act Feb. 28, 1927 [44 Stat. 1253]).
Suit against Secretary of the Navy and others to enjoin maintenance of depot for storing large quantities of high explosives in neighborhood of plaintiffs’ property as a taking of property without due process, in violation of Const. Amend. 5, held properly dismissed as to naval officer in charge, not because the Secretary of the Navy, his superior, was not a party, but because the suit was in effect against the United States and to restrain as a nuisance the exercise of a discretion reposed in the executive by Const, art. 1, § 8, els. 12, 13, 17, Act July 1, 1918 (40 Stat. 722), President’s Proclamation Aug. 7, 1918 (40 Stat. 1827), and Act Feb. 28, 1927 (44 Stat. 1253).
4. United States <@=>135 — United States is necessary party to suit to enjoin maintenance of naval mine depot.
United States is a necessary party to a suit to enjoin the maintenance of a naval mine depot pursuant to act of Congress.
5. Injunction <@=>75 — Injunction will not lie against executive official to restrain use of government property authorized by Congress and within discretion of executive.
Suit for injunction will not lie against an official of the executive department to restrain as a nuisance the use of government property authorized by Congress and within the discretion of the executive.
6. Constitutional law <@=>82 — Congress and executive, in exercise of rights, must have regard for rights of private persons.
Congress, in exercising the powers vested in it by the Constitution, and the executive, in exercising discretion reposed by Congress, must have regard for the rights of private persons protected by the Constitution.
7. Constitutional law <@=>278(1) — Eminent domain <@=>69 — Private property cannot be taken without just compensation or due process of law.
Private property cannot be taken for public use without just compensation, nor can persons be deprived of property without due process of law.
8. Nuisance <@=>6 — Action authorized by valid legislative authority will not be enjoined as nuisance.
Courts will not enjoin as a nuisance an action authorized by valid legislative authority.
Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.
Suit by Howard Ferris, trustee, and others, against Curtis D. Wilbur, Secretary of the Navy, and others. From a decree of dismissal, plaintiffs appeal.
Affirmed.
Allan D. Jones, of Newport News, Va., for appellants.
Luther B. Way, Sp. Asst. U. S. Atty., of Norfolk, Va. (Paul W. Hear, U. S. Atty., of Norfolk, Va., on the brief), for appellees.
Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a decree denying an interlocutory injunction and dismissing the bill of complaint in a suit instituted by persons owning property near the United States naval mine depot in York county, Virginia, to enjoin the Secretary of the Navy and the naval officer in charge of the depot from storing high explosives within the area acquired by the government for that purpose. The bill alleged that large quantities of high explosives were being stored within the area, that it was planned to store there even larger quantities in the future, that the storage of such explosives was and would continue to he a constant source of danger to lives and property for miles around, and that such storage so depreciated the value of the property of complainants as to constitute a taking thereof without due process of law in violation of the Fifth Amendment to the Constitution. One Johnston was joined as a defendant under an allegation that he had been awarded a contract to construct roads in the development of the depot. As to him the bill was dismissed on the merits. As to the Secretary of the Navy it was dismissed because he was not a resident of the district and had not appeared or been served with process. As to defendant Miles, the naval officer in charge of the depot, it was dismissed on the ground that- the Secretary was a necessary party to the suit, as Miles was alleged to be acting under his orders.
In so far as the order dismissed the suit as to the contractor and the Secretary of the Navy, it was so obviously proper as not to merit discussion. We think, also, that it was proper to dismiss the suit as to the defendant Miles, not because the Secretary of the Navy was not made a party, but because it was in effect a suit against the United States and sought to restrain as a nuisance the exercise of a discretion reposed in the executive by a valid act of Congress.
In accordance with the purpose expressed in the Constitution “to provide for the common defense,” Congress is vested with the power to raise and support armies and to provide and maintain a navy and is authorized “to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” Constitution art. 1, § 8, els. 12, 13, and 17. Acting under these constitutional provisions, Congress by the Act of July 1, 1918, appropriated the sum of $3,000,000 for the erection and equipment of a depot for the storage of high explosives and the loading of mines on a site to be acquired by the President. 40 Stat. 722. On August 7, 1918, the President issued a proclamation designating a tract of 11,433 acres near Yorktown, Va., which is the area here involved, as the navy mine depot authorized by the act. 40 Stat. 1827. Title to this tract was acquired by the United States with the consent of the Legislature of Virginia (Acts of the General Assembly of Virginia of 1918, e. 382, p. 568), and the naval mine depot was established and large quantities of high explosives were stored upon it. Later by Act Feb. 28, 1927, Congress appropriated the sum of $580,000 for additional storage and incidental improvements at this naval mine depot. 44 Stat. pt. 2, p. 1253. There can be no doubt, therefore, that the title to the land upon which the naval mine depot is situate is held by the United States, that it was purchased by the consent of the Legislature of Virginia in accordance with the constitutional requirement, that exclusive legislative power over the land acquired is vested in Congress, that Congress has expressly authorized that it be used for the storage of high explosives, and that the discretion to determine what explosives shall be stored there and how they shall be stored has been vested in the executive.
Now defendant Miles, in storing and preparing to store explosives on the Naval Mine Depot, is admittedly acting under the direction of the Secretary of the Navy, who represents the President. In suing to restrain him, therefore, complainants are suing the authorized representative of the government, and are asking that he be restrained from carrying out on government property a policy determined upon by the Executive Department in the exercise of a discretion reposed in it by Congress. It is manifestly, then, not a suit to restrain unauthorized action by a government official, or action based upon an unconstitutional statute, but a suit to restrain action in which the official is exercising valid governmental authority by virtue of his office. There can be no doubt that such a suit is in essence a suit against the United States, and that the United States is a necessary party thereto. And, as it has. not consented to be made a party, the suit must fail. Morrison v. Work, 266 U. S. 481, 488, 45 S. Ct. 149 (69 L. Ed. 394); United States ex rel. Goldberg v. Daniels, 231 U. S. 218, 221 to 222, 34 S. Ct. 84 (58 L. Ed. 191); Naganab v. Hitchcock, 202 U. S. 473, 476, 26 S. Ct. 667 (50 L. Ed. 1113); International Postal Supply Co. v. Bruce, 194 U. S. 601, 606, 24 S. Ct. 820 (48 L. Ed. 1134); Belknap v. Schild, 161 U. S. 10, 16 S. Ct. 443, 40 L. Ed. 599.
Défendant relies particularly upon the cases of U. S. v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171, Philadelphia Co. v. Stimson, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570, and Colorado v. Toll, 268 U. S. 228, 45 S. Ct. 505, 69 L. Ed. 927. The Lee Case decided that the owner of land held and occupied by the United States for public uses, but under a defective title, might maintain ejectment against the officers of the United States in possession. But, as pointed out by Mr. Justice Miller in Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446, 452, 3 S. Ct. 292, 609 (27 L. Ed. 992); and by Mr. Justice Gray in Belknap v. Schild, supra, in such case the officer in possession is sued, not as or because he is the officer of the government, but as an individual. The court is not ousted of jurisdiction merely because he asserts authority as an officer, but the burden rests upon him to show that his authority is sufficient in law to protect him. There is an obvious distinction between such a ease and one where defendant is sued as an officer of the government, and it is sought to restrain him from action taken in the exercise of a discretion reposed by Congress in the Executive Department. Where the act complained of is not authorized by statute, or where the statute authorizing it is void because in conflict with some provision of the Constitution, the person attempting it may be restrained in a proper case, notwithstanding his claim that he is acting in his official capacity. In such ease he is acting, not within the law, but outside it, his act is not the act of the government, and the law affords him no proteetipn for what he is doing or is about to do. This is true, whether he be the head of a department or merely a subordinate acting under orders; and, if a subordinate, there is no necessity of joining as defendant the head of the department because the orders of the head are immaterial if the act sought to be enjoined is not authorized by law. Colorado v. Toll, supra. These doctrines, however, have no application where, as here, the official is acting under the 'authority of a statute which does not offend any constitutional provision. In such case his action is the action of the government; if injunction is awarded against him, it is the action of the government, and not his individual action, which is restrained; and the government is consequently a necessary party to the suit, which must fail unless it has consented to be sued.
Nothing said in Philadelphia Co. v. Stimson, supra, or Colorado v. Toll, supra, conflicts with the rule which we have stated. The language relied upon in the opinion of the former case occurs at pages 619 and 620 of 223 U. S. (32 S. Ct. 344), and supports the rule as we have stated it. At page 620 (32 S. Ct. 344) the court said: “The complainant did not ask the court to interfere with the official discretion of the Secretary of War, bu.'i challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.”
This effectually distinguishes that case from the ease at bar. Here the injunction if granted would interfere with the official discretion of the Secretary of the Navy and accordingly is a suit against the United States. In Colorado v. Toll, supra, the injunction was sought to restrain defendant from enforcing regulations not authorized by act of Congress. Here the storage of explosives has been expressly authorized.
And apart from the fact that the United States is a necessary party to a suit such as this and has not consented to be sued, we think that the bill is lacking in equity in that suit for injunction will not lie against an official of the Executive Department to restrain as a nuisance a use of government property authorized by Congress and within the discretion of the executive. As said by Professor Pomeroy, Equity Jurisprudence (4th Ed.) vol. 4, p. 4062: “An injunction will not issue against an executive officer of the government, nor against one acting under him, to restrain the performance or execution of administrative acts and orders within the scope of his authority. This is based upon the principle which governs also the legal remedy of mandamus. It would be contrary to our theory of government for the judicial department to interfere with the reasonable discretion of the executive.” See, also, 32 C. J. 246; Dakota Co. v. South Dakota, 250 U. S. 163, 184, 39 S. Ct. 507 (63 L. Ed. 910, 4 A. L. R. 1623); Louisiana v. McAdoo, 234 U. S. 627, 633, 34 S. Ct. 938 (58 L. Ed. 1506); Sheriff v. Turner (C. C.) 119 F. 782.
It is true that Congress, in exercising the powers vested in it by the Constitution, and the executive, in exercising the discretion reposed in it by Congress, must have regard for the rights of private persons as guaranteed by the Constitution. Private property cannot be taken for publie use without just compensation, nor can persons be deprived of property without due process of law. But in this ease the land upon which the explosives are to be stored belongs to the government, and the only injury which complainants apprehend is injury arising out of the government’s use of its own property. The question is whether such use authorized by act of Congress can be enjoined by the courts as a nuisance. The question, we think, answers itself. Of course, if what is done by officials under authority of law amounts to a taking of private property for public use, the owner is entitled to recover just compensation in a proper proceeding. Portsmouth Harbor, etc., Co. v. U. S., 260 U. S. 327, 43 S. Ct. 135, 67 L. Ed. 287.
But it is unthinkable that the courts should enjoin as a nuisance the use of government property by a co-ordinate branch of the government, the executive, where such use is authorized by a valid act of'the other coordinate branch, the legislative. It is elementary that courts will not enjoin as a músanse action authorized by valid legislative authority. 20 R. C. L. 500; Northern Transportation Co. v. Chicago, 99 U. S. 635, 640 (25 L. Ed. 336); note 107 Am. St. Rep. 220. Certainly injunction should not be granted where the alleged nuisance arises out of action taken under legislative authority exercised under one of the first mandates of the Constitution, “to provide for the common defense.”
Por the reasons stated, the action of the court below in dismissing the bill is affirmed.
Affirmed.
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Richard Edward MADISON, Petitioner, v. Ralph H. TAHASH, Warden Minnesota State Prison, Respondent.
No. 18331.
United States Court of Appeals Eighth Circuit.
April 18, 1966.
Richard E. Madison, in pro. per.
Robert W. Mattson, Atty. Gen., St. Paul, Minn., for respondent.
Before MATTHES and MEHAFFY, Circuit Judges.
PER CURIAM.
Petitioner, Richard Edward Madison, an inmate of the Minnesota State Prison at Stillwater, Minnesota, seeks appointment by this court of an attorney to prosecute an appeal in forma pauperis from an order of the United States District Court denying his application for writ of habeas corpus.
At the outset, we note that the District Court refused to issue a certificate of probable cause which is a requisite to an appeal here. Curtis v. Bennett, 351 F.2d 931, 933 (8th Cir. 1965); McGee v. Eyman, 310 F.2d 230, 231 (9th Cir. 1962); Ramsey v. Hand, 309 F.2d 947, 948 (10th Cir. 1962); Johnson v. Mayo, 256 F.2d 761 (5th Cir. 1958); Bell v. Commonwealth of Virginia, 245 F.2d 170 (4th Cir. 1957); Sessions v. Manning, 227 F.2d 324, 325 (4th Cir. 1955), cert. denied, 350 U.S. 1008, 76 S.Ct. 653, 100 L.Ed. 870 (1956); Farmer v. Skeen, 222 F.2d 948, 949 (4th Cir. 1955), cert. denied, 350 U.S. 864, 76 S.Ct. 108, 100 L.Ed. 766 (1955); 28 U.S.C.A. § 2253.
Nonetheless, but strictly on an ad hoc basis, and not to serve as a precedent for future handling of similar cases, we have elected to treat petitioner’s request for appointment of counsel as an application for certificate of probable cause.
Petitioner was convicted by a jury in the state court of the crime of robbery in the first degree and sentenced to imprisonment on January 23, 1956. He was represented at trial by the public defender and did not appeal his conviction to the Minnesota Supreme Court. Thereafter, petitioner brought habeas corpus proceedings in both the District and Supreme Courts of Minnesota. His petition in each court, involving the same questions as are present here, was denied by the District Court and the Supreme Court of Minnesota as being frivolous.
In all of his habeas applications, petitioner has alleged that he did not have the assistance of counsel at his arraignment in the state court on January 5, 1956, and because of this he was denied the right to argue an illegal detention in the city jail ten days prior to arraignment; and denied the right to file a petition at said arraignment submitting his illegal arrest, search and seizure.
The transcript of the proceedings at arraignment is contained in the original files of the federal district court, and reflect that petitioner was not represented by counsel at arraignment. He was asked by the court if he wanted to enter a plea to which query he stated that he pleaded not guilty, whereupon he was arraigned and a discussion was had as to his representation by counsel. The trial court advised petitioner that he had an absolute choice of counsel, or, failing to procure one, the court would appoint the public defender. Petitioner mentioned a private attorney he would like to employ but intimated he might not be able to obtain his services due to his lack of funds. The prosecutor was advised to contact the attorney of petitioner’s choice and see if he would handle the case, and further to provide petitioner with an opportunity to contact any other lawyer he might desire and sufficient time would be allowed for this purpose. As it developed, petitioner did not employ counsel and the public defender was appointed to defend him.
The District Court in a memorandum decision (Madison v. Tahash, 249 F.Supp. 600) exhaustively reviewed the legal aspects of this case and concluded that arraignment is not a critical stage in Minnesota and that petitioner could not have been prejudiced by being arraigned and pleading not guilty at arraignment without counsel for the reason that under the Minnesota procedure a plea entered without benefit of counsel does not operate to irrevocably waive any defenses or objections that petitioner might have had at this stage of the proceedings. The District Court cited State ex rel. Lacklines v. Tahash, 267 Minn. 237, 126 N.W.2d 646 (1964) and State v. Perra, 266 Minn. 545, 125 N.W.2d 44 (1963), cert. denied, 377 U.S. 982, 84 S.Ct. 1889, 12 L.Ed.2d 749 (1964), as supportive of the right of a defendant to raise the desired defenses after arraignment and plea and when represented by appointed counsel. Also, the District Court noted that the Minnesota Supreme Court has concluded that arraignment is not a critical stage of trial in that state. State v. Roy, 266 Minn. 6, 122 N.W.2d 615 (1963), cert. denied, 375 U.S. 956, 84 S.Ct. 445, 11 L.Ed.2d 315 (1963).
The well considered opinion of Judge Earl R. Larson (249 F.Supp. 600) more elaborately recites the facts and profoundly reviews the authorities leading to his conclusion that a writ of habeas corpus should not issue. We agree with Judge Larson’s analysis of the cases cited as well as the result reached.
There is nothing in the record to indicate that petitioner was deprived of any constitutional right by his plea of not guilty at arraignment. We, therefore, deny petitioner’s application for certificate of probable cause.
. The last sentence in 28 U.S.C.A. § 2253 provides:
“An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UTAH POWER & LIGHT COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
No. 76-1873.
United States Court of Appeals, District of Columbia Circuit.
Order Granting Motion Dec. 23, 1976.
Decided Feb. 22, 1977.
Peter R. Taft, Asst. Atty. Gen., and Earl Salo, Atty., Dept, of Justice, Washington, D.C., were on the motion to dismiss filed by respondent.
Gerry Levenberg, Washington, D.C., and Veri R. Topham, Salt Lake City, Utah, were on the response in opposition filed by petitioner.
Before FAHY, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.
Opinion filed by LEVENTHAL, Circuit Judge.
Opinion filed by FAHY, Senior Circuit Judge, joining with LEVENTHAL, Circuit Judge.
LEVENTHAL, Circuit Judge:
Utah Power & Light Company (UP&L) petitioned this Court for direct review of a decision by the Environmental Protection Agency (EPA), subjecting three of UP&L’s steam electric generating plants under construction to new source review under agency regulations regarding “significant deterioration of air quality.” In its petition for review filed September 20, 1976, UP&L predicated this Court’s jurisdiction upon Section 307(b)(1) of the 1970 amendments to the Clean Air Act.
On November 2,1976, EPA filed a motion to dismiss for lack of jurisdiction in this Court. Specifically, EPA contended that UP&L was not challenging “the Administrator’s action in approving or promulgating” a state implementation plan, within the meaning of Section 307(b)(1). On December 23, 1976, after considering the motion and the response thereto, this Court entered an order granting EPA’s motion to dismiss.
I
On December 5, 1974, respondent EPA promulgated regulations designed to prevent “significant deterioration” of air quality. The regulations, effective January 6, 1975, were made applicable to any new stationary source “which has not commenced construction or modification prior to June 1, 1975 . . . .” The regulations were incorporated into all state implementation plans.
In a letter dated September 2, 1975, Region 8 of the EPA requested that UP&L supply certain information on its plans to construct new power plants. UP&L responded by letter dated September 12,1975, noting, inter alia, that it had begun construction on three new plants in Utah, aftér having obtained new source construction permits from the Utah Air Conservation Committee (“Committee”). In accordance with the then existing Utah Air Conservation regulations, these permits were based upon plans that included for each plant a flue gas desulfurization unit (“scrubber”), designed to remove 80 percent of the sulfur dioxide from the flue gases emitted by each plant. Construction on all three plants commenced prior to June 1, 1975, the cutoff date under the EPA significant deterioration regulations.
The Utah Air Conservation regulations were amended on July 9,1975. On September 15, 1975, three days after its letter to EPA, UP&L applied to the Utah Committee for a determination that under the amended state regulations, the scrubbers were no longer required. In early 1976, the Utah Committee approved the elimination of the scrubbers from the plans for UP&L's three Utah plants.
On February 4, 1976, UP&L filed a request for an EPA ruling that the significant deterioration regulations do not apply to the three Utah plants. On March 25, 1976, EPA’s Region 8 notified UP&L that the elimination of the scrubbers constituted a “modification” of the plants, occurring after June 1, 1975, and that such modification would bring the three plants within the ambit of the regulations. Region 8 instructed UP&L to submit an application for permission to modify, pursuant to 40 C.F.R. § 52.21(d) (2)-{3). UP&L requested reconsideration on May 7,1976. In a letter dated August 23, 1976, Region 8 reaffirmed its earlier opinion and notified UP&L that its decision was “a final determination in the case.” Thereupon UP&L filed with this Court a petition for review, which EPA seeks to dismiss on jurisdictional grounds.
II
This Court has previously noted that the jurisdictional provisions of the Clean Air Act “have been sources of periodic confusion” and that therefore “proper disposition of a motion to dismiss, for lack of jurisdiction requires precise characterization of the action sought to be reviewed.” District of Columbia v. Train, supra note 8, 533 F.2d at 1252. Section 307(b)(1) grants exclusive jurisdiction to courts of appeals “to hear challenges to a limited class of actions taken by the Administrator.” In the present case, the Court must decide whether the challenged action — i.e., the EPA’s decision as to the applicability of the significant deterioration regulations — can fairly be characterized as “action in approving or promulgating any [state] implementation plan" under Section 307(b)(1). If so, the court of appeals has exclusive jurisdiction to hear UP&L’s claim. If not, this Court is without jurisdiction and must grant the motion to dismiss.
Characterization of the challenged action depends in turn on the nature of petitioner’s challenge. Specifically, the court must determine whether the petitioner is attacking the validity of an agency regulation or, instead, is attacking a particular interpretation or application of that regulation. Both the language of Section 307(b)(1) and the policy considerations underlying that provision compel the conclusion that challenges to the validity of certain agency regulations are directly reviewable by courts of appeals, whereas challenges to interpretations of those regulations are not. As with most general rules, an exceptional case may defy easy classification. In our opinion, this is not such a case.
UP&L’s challenge cannot fairly be characterized as impugning the validity of 40 C.F.R. sections 52.21(d)(1) and 52.01(d), which, respectively, make the significant deterioration regulations applicable to stationary sources modified (as well as constructed) on or after June 1, 1975, and define “modification” to include “any physical change in or change in the method of operation of” the polluting source. First, UP&L’s petition for review does not, on its face, attack the validity of the significant deterioration regulations. Second, as EPA notes, this Court has already sustained the validity of those regulations. Finally, any further facial challenge would seem to be time-barred under Section 307(b)(1).
Consequently, unless UP&L seeks to chailenge the EPA’s interpretation of the new regulations, the statute provides that petitioner will not be entitled to judicial review in any federal court. And, as previously indicated, that kind of challenge is not cognizable under Section 307(b) (l). Although we need not reach the question in this case, we note that if federal review of the action challenged here is available at all, it should be sought in the district court.
. 40 C.F.R. §§ 52.01(d),(f), 52.21.
. 42 U.S.C. § 1857h-5(b)(l). That section provides, inter alia, that a petition for review of “the Administrator’s action in approving or promulgating” any state implementation plan “may be filed only in the United States Court of Appeals for the appropriate circuit.” See note 10 infra.
. The states are charged with the duty to develop implementation plans designed to achieve the level of air quality prescribed by national “primary” and “secondary” air quality standards promulgated by the Administrator of EPA. Section 107, 42 U.S.C. § 1857C-2. Pursuant to Section 110, 42 U.S.C. § 1857c-5, each state must submit its implementation plan to the Administrator for his approval. A proposed implementation plan must satisfy the requirements set out in Section 110(a)(2), 42 U.S.C. § 1857c-5(a)(2).
. 39 Fed.Reg. 42510 (1974). Minor amendments to the regulations were published on January 16, 1975 (40 Fed.Reg. 2802), June 12, 1975 (40 Fed.Reg. 25004), and September 10, 1975 (40 Fed.Reg. 42011).
. See 40 C.F.R. §§ 52.21(d)(1), 52.01(d), (f). 40 CFR § 52.21(d)(1) provides, in pertinent part:
Review of new sources . . . [T]he requirements of this paragraph [i.e., the significant deterioration regulations] apply to any new or modified stationary source of the type identified below which has not commenced construction or modification prior to June 1, 1975 . . ..
40 C.F.R. § 52.01(d) provides, in pertinent part:
The phrases “modification” or “modified source” mean any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promulgated .
. See, e.g., 40 C.F.R. § 52.2346 (amending Utah’s implementation plan to incorporate by reference the significant deterioration regulations).
. See note 5 supra.
. District of Columbia v. Train, 175 U.S.App.D.C. 115, 533 F.2d 1250, 1252, cert. granted, 426 U.S. 904, 96 S.Ct. 2224, 48 L.Ed.2d 829 (1976). See also National Resources Defense Council, Inc. v. Environmental Protection Agency, 168 U.S.App.D.C. 111, 512 F.2d 1351, 1361 (1975), in which Judge Wright, dissenting in part, stated that “the courts play jurisdictional badminton with these provisions,” “batting” cases back and forth between the district court and the court of appeals.
. District of Columbia v. Train, supra note 8, 533 F.2d at 1254 (emphasis added).
. Section 307(b)(1), 42 U.S.C. § 1857h-5(b)(l), specifies a number of grounds for direct review in the court of appeals:
A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 1857c-7 of this title, any standard of performance under section 1857c-6 of this title, any standard under section 1857Í-1 of this title (other than a standard required to be prescribed under section 1857f — 1(b)(1) of this title), any determination under section 1857f-1(b)(5) of this title, any control or prohibition under section 1857f-6c of this title, or any standard under section 1857Í-9 of this title may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title or section 1857c-6(d) of this title, or his action under section 1857c-10(c)(2)(A), (B), or (C) of this title or under regulations thereunder, may be filed only in the United States Court of Appeals for the appropriate circuit.
None of the other grounds is relevant to this case, and neither party has argued otherwise.
. 42 U.S.C. § 1857h-5(b)(l); see District of Columbia v. Train, supra note 8, 533 F.2d at 1252, 1254.
. See id.
. This distinction is not new to the law. In determining the degree of deference owed an agency determination, courts have distinguished between claims that an agency’s action is ultra vires and claims that an agency’s interpretation of the act it administers is legally unsound. See, e.g., International Brotherhood of Electrical Workers, AFL-CIO v. NLRB, 159 U.S.App.D.C. 272, 487 F.2d 1143, 1170-71 (1973), aff’d sub nom., Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974).
. Only by straining the meaning of the words “approving” and “promulgating” could it be said that challenges to interpretations or applications of EPA regulations constitute attacks on “the Administrator’s action in approving or promulgating” any state implementation plan. Nothing in the legislative history of Section 307(b)(1) supports this strained reading of the statutory language. Indeed, a passage in the Report of the Senate Committee on Public works clearly reveals that applications of agency regulations are not embraced within Section 307(b)(1). In discussing Section 307(b)(2), 42 U.S.C. § 1857h-5(b)(2) [see note 18 infra], which, in enforcement proceedings, precludes review of issues that could have been raised under Section 307(b)(1), the Senate Committee states: “Of course, the person regulated would not be precluded from seeking review at the time of enforcement insofar as the subject matter applies to him alone.” S.Rep.No. 91-1196, 91st Cong., 2d Sess. 41 (1970). If attacks on particular applications of regulations are not precluded by Section 307(b)(2), then presumably they are not reviewable under Section 307(b)(1).
. The petition for review seeks review of the EPA’s determination “that petitioner’s three steam electric generating units, all of which commenced construction prior to June 1, 1975, are nonetheless subject to the regulations promulgated by respondent entitled ‘Prevention of Significant Air Quality Deterioration’, 40 CFR Sections 52.01(d), (f), and 52.21.”
. See Sierra Club v. Environmental Protection Agency, 176 U.S.App.D.C. 335, 540 F.2d 1114 (1976), cert. granted sub. nom. Utah Power & Light Co. v. EPA,-U.S.-, 97 S.Ct. 1597, 51 L.Ed.2d 802. The Court sustained the “commenced” and “modified” provisions against a claim that the regulations should apply to stationary sources commencing construction or modified prior to June 1, 1975. Id. at 1123, 1133.
. Section 307(b)(1) provides that any petition for review filed in a court of appeals pursuant to the jurisdictional grounds enumerated in that section “shall be filed within 30 days from the date of such promulgation, approval, or action, or after such date if such petition is based solely on grounds arising after such 30th day.” The significant deterioration regulations were promulgated on December 5, 1974, and were incorporated into Utah’s implementation plan on June 12, 1975.
There is no contention here that although the regulation as issued apparently was accepted by petitioner as constitutional, the interpretation at hand is a “new” circumstance that, if accepted as a correct interpretation of the regulation, has the effect of rendering the regulation invalid.
. The courts of appeals have exclusive jurisdiction to hear challenges to “the Administrator’s action in approving or promulgating any implementation plan.” 42 U.S.C. § 1857h-5(b)(1); see District of Columbia v. Train, supra note 8, 533 F.2d at 1252, 1254; see also 42 U.S.C. § 1857h-5(b)(2) (“Action of the Administrator with respect to which review could have been obtained under [Section 307(b)(1)] shall not be subject to judicial review in civil or criminal proceedings for enforcement”).
. See note 14 and accompanying text, supra. Recent judicial opinions have tended to construe Section 307(b)(1) narrowly. See District of Columbia v. Train, supra note 8, 175 U.S.App.D.C. 115, 533 F.2d 1250 (challenge to consent agreement between EPA and GSA does not trigger Section 307(b)(1) jurisdiction); West Penn Power Co. v. Train, 522 F.2d 302, 309 (3rd Cir. 1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183 (1976) (action for declaratory judgment that power company was not violating sulfur emission standards was a challenge to methods of compliance, not to plan itself, and thus did not constitute challenge to “Administrator’s action in approving or promulgating any implementation plan”); Utah International, Inc. v. Environmental Protection Agency, 478 F.2d 126 (10th Cir. 1973) (challenge to EPA order disapproving previously approved portions of state plan did not constitute challenge to approval or promulgation of implementation plan).
. Previous decisions of this court have upheld the jurisdiction of the district court under Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. See, e.g., Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107, 1109-10 & nn.4-5 (1974). The Supreme Court has granted certiorari in a case involving the same jurisdictional issue. Mathews v. Sanders, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 829 (1976). Whatever the outcome of that case, it appears that UP&L could bring suit in federal district court under 28 U.S.C. § 1331(a), as amended by Act of October 21, 1976, Pub.L.No. 94-574, § 703, 90 Stat. 2721, which removed the amount in controversy requirement in civil actions against the United States or agencies thereof. Serious questions of due process would arise if neither of these provisions offered UP&L a jurisdictional predicate, in district court.
'Finally, we note that in its papers filed with this Court, UP&L stated that the ambiguities of the Clean Air Act created a dilemma: if petitioner had first filed a complaint with the district court, and if that court had then dismissed for lack of jurisdiction, the 30-day statute of limitation in Section 307(b)(1) would have barred UP&L from seeking review in this Court. Recognizing that the statutory scheme encourages litigants to file petitioners for review in the courts of appeals whenever jurisdiction is in doubt, we urge Congress to adopt the recommendation of the Administrative Conference of the United States and amend Section 307 to provide for transfer between courts of appeals and district courts when a proceeding to review EPA action under the Clean Air Act is filed in the wrong forum. Administrative Conference of the United States, Resolution of December 10, 1976, Judicial Review Under the Clean Air Act and Federal Water Pollution Control Act, reprinted at 41 Fed.Reg, 56767 (Dec. 30, 1976). See Investment Company Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App. D.C. 311 at -, 551 F.2d 1270, at 1272-73 (1977) (Leventhal, J., concurring).
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Kurt J. LINDNER, Edith Lindner; St. Joseph Hospital of Kirkwood; Admiral Insurance Agency; Lindner Fund, Inc.; Petty & Company; Landmark Central Bank & Trust Company, Appellants, v. DURHAM HOSIERY MILLS, INC.; George A. Cralle; H.E. Schoenhut, Jr.; W.K. Bigelow; H.E. Rodenhizer; W.C. Spann and John P. Barnett, individually, Appellees.
No. 84-1593.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1985.
Decided May 6, 1985.
William Woodward Webb, Raleigh, N.C. (Broughton, Wilkins & Webb, P.A., Raleigh, N.C., Kevin P. Roddy, Smith, Tag-gart, Gibson & Albro, Charlottesville, Va., on brief), for appellants.
G. Eugene Boyce, Raleigh, N.C. (Susan K. Burkhart, Boyce, Mitchell, Burns & Smith, P.A., Raleigh, N.C., on brief), and L. Bruce McDaniel, Raleigh, N.C. (DeBank, McDaniel, Heidgard & Holbrook, Raleigh, N.C., on brief), for appellees.
Before RUSSELL and CHAPMAN, Circuit Judges and HAYNSWORTH, Senior Circuit Judge.
CHAPMAN, Circuit Judge:
This appeal arises out of the merger and reorganization of Durham Hosiery Mills, Inc. (Durham Hosiery), a North Carolina corporation, into DHM, Inc., a Virginia corporation, on January 15, 1981. The plaintiffs brought this diversity action alleging that the defendants had deprived them of the fair market value of their stock by virtue of a reverse stock split accomplished as a part of the merger. The plaintiffs appeal from the decision of the district court dismissing their claim for relief under the North Carolina Unfair Trade Practices Act, N.C.Gen.Stat. § 75-1.1 (1981), and denying their motion for a new trial on their claim for breach of fiduciary duty. We affirm.
I
The plaintiffs are former minority shareholders who owned Class B nonvoting stock in Durham Hosiery. All of the plaintiffs are citizens and residents of the State of Missouri. Defendant Durham Hosiery was a hosiery manufacturer incorporated in North Carolina with plants located, at one time, in both North Carolina and Virginia. Defendants Bigelow, Rodenhizer, and Spann were directors of Durham Hosiery.
In August 1980 a New York stockbroker contacted the president of Durham Hosiery, defendant George Cralle, and offered him a large block of stock. The broker was asking $7 a share for the Class B stock and $12 a share for the Class A stock. Cralle contacted John P. Barnett, an acquaintance who had negotiated the sale of the Danville plant to Durham Hosiery, and offered him the opportunity to acquire this block of stock.
After many discussions, Barnett authorized Cralle, who had personally dealt with the New York stockbroker, to negotiate the purchase of the Durham Hosiery stock. On November 7, 1980, Barnett purchased through Cralle 25,705 shares of Class B and 2,483 shares of Class A stock from the New York stockbroker. Because the number of outstanding Durham Hosiery shares was 71,101, this transaction represented a purchase by Barnett of 40 percent of the company’s stock. The majority of the company’s shares was owned by Cralle and Harry S. Schoenhut, the vice president of Durham Hosiery.
Cralle and Schoenhut had been employees of Durham Hosiery for 28 years and 13 years, respectively. Before these transactions occurred, the Board of Directors of Durham Hosiery had discussed and concluded that the company would provide retirement benefits for Cralle and Schoenhut. When Barnett began acquiring stock in Durham Hosiery and reorganization discussions began, Cralle requested that Barnett honor the company’s obligation to fund the retirement plans that he and Schoenhut had anticipated. Barnett agreed that after the merger Schoenhut would receive deferred compensation of $500,000 for consulting services to the corporation. Cralle received similar assurances, and also an option to sell to Barnett his shares of Durham Hosiery. By the time of the merger, Barnett had accumulated a majority of the Durham Hosiery stock.
After Cralle and Barnett discussed their intentions for the reorganization of Durham Hosiery, Barnett arranged a meeting with attorney Frederick R. Russell. Russell advised Barnett and Cralle to reduce substantially the number of Durham Hosiery shareholders to enable the company to raise one million dollars of working capital through personal guarantees. Russell also recommended that Durham Hosiery eliminate nonvoting stock. Finally, they agreed to a plan by which those shareholders interested in remaining in the corporation had to accumulate 4,500 shares in the old corporation to acquire one share in the new corporation. The new corporation would have only 16 shares of stock. Holders of fewer than 4,500 Durham Hosiery shares were either to purchase sufficient shares to bring the total to 4,500, or to sell their shares at a price determined by bids received by the corporation from holders seeking more shares.
Durham Hosiery mailed to its shareholders a Proxy Statement and other documents, prepared by Russell, containing descriptions of the proposed merger and reorganization. According to the Proxy Statement, shareholders objecting to the merger could dissent and seek appraisal of and payment for their shares in the corporation by complying with the “Virginia Stock Corporation Act (or the similar provi sion of North Carolina law).” Cralle read the documents and signed the Proxy Statement.
On December 22, 1980, the Board of Directors of Durham Hosiery voted unanimously in favor of the plan for reorganization and merger. At a special meeting on January 12, 1981, the Durham Hosiery shareholders approved the merger by an affirmative vote of 80 percent or more of each class of outstanding stock. The plaintiffs dissented from the proposed merger and reorganization, executing their proxies on December 27, 1980. The Articles of Merger of Durham Hosiery Mills and DHM, Inc. were filed with the Secretary of State of North Carolina on January 15, 1981, and the merger was effected.
On January 19, 1981, Durham Hosiery sent a letter to the plaintiffs and other Durham Hosiery shareholders explaining that the merger had been overwhelmingly approved and that the merger was effective. The letter, signed by Cralle, also instructed the shareholders to execute an enclosed form for disposing of fractional interests in the stock and requested return of the stock certificates in accordance with the plan for payment. The plaintiffs did not respond to this letter. On February 23, 1981, Durham Hosiery sent another letter to the plaintiffs instructing them to submit their stock certificates in order to receive $7 per share of stock. The plaintiffs again failed to submit their stock certificate for payment.
In April 1981 the plaintiffs filed an action in the Wake County Superior Court of North Carolina seeking a determination of the fair value of Durham Hosiery stock. This state appraisal action was pending on December 23, 1981, when the plaintiffs filed the present action for damages in the district court. That action is still pending in the North Carolina state court.
In this action the plaintiffs alleged causes of action for (1) violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Security Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. 240.10b-5 (1984); (2) constructive fraud; (3) breaches of fiduciary duty; (4) violations of the North Carolina Securities Act, N.C.Gen.Stat. § 78A-56(b) (1981); (5) unfair or deceptive acts or practices in violation of N.C.Gen.Stat. § 75-1.1 (1981); and (6) violations of the North Carolina Dissenters’ Rights Statute, N.C.Gen.Stat. §§ 55-108, 113 (1981). In two separate memoranda opinions the district court dismissed all of the plaintiffs’ claims except their claim for breach of fiduciary duty. On January 12, 1984, the plaintiffs amended their complaint to allege a cause of action under the civil damages provision of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961—68 (1982).
After twelve days of testimony the jury found that the defendants had not committed a breach of fiduciary duty and that they had not violated the provisions of the RICO Act. The district court denied the plaintiffs’ motion for a new trial and entered judgment in accordance with the jury’s verdict. This appeal followed.
II
The first issue presented is whether N.C.Gen.Stat. § 75-1.1 applies to securities transactions. The plaintiffs argue that the defendants’ conduct constituted an unfair or deceptive act or practice in violation of § 75-1.1. The district court dismissed this claim and held that “the instant merger transaction does not fall within the scope of N.C.Gen.Stat. Sec. 75-1.1.” It stated that § 75-1.1 “is directed toward misrepresentation and shady practices sometimes associated with the marketing of goods and services, and that the deterrent of such practices for the protection of the general public is the reason that ... [§] 75-16 entitled the person injured by such acts to treble damages.” The district court reasoned that § 75-1.1 has no application to a securities fraud case involving a corporate merger because such an application is inconsistent with the purpose behind the enactment of § 75-1.1.
Because the North Carolina Unfair Trade Practices Act does not refer to securities transactions and the North Carolina courts have not addressed this issue, we must ascertain what the North Carolina Supreme Court would decide if confronted with this question. Our inquiry is guided by the purpose behind § 75-1.1, the North Carolina cases limiting the scope of § 75-1.1, other state cases construing similar statutes, and the scope of § 5 of the Federal Trade Commission (FTC) Act, 15 U.S.C. § 45(a)(1) (1982).
Section 75-l.l(a) declares that “[ujnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are ... unlawful.” There are only two express exclusions contained in the statute. Subsection (b) excludes professional services rendered by a member of a learned profession. Subsection (c) excludes the advertising media when the owner, agent or employee who published the material did not have knowledge of the false, misleading or deceptive character of the advertisement and did not have a direct financial interest in the sale or distribution of the advertised product or service. This Court previously has observed that the “prohibitory scope of the North Carolina [Unfair Trade Practices Act] ... is potentially quite broad.” ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 n. 10 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (citing Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716-17 (4th Cir.1983)). Nevertheless, the scope of § 75-1.1 is not unlimited.
The apparent purpose behind the enactment of § 75-1.1 was the protection of the consuming public. In Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), the North Carolina Supreme Court stated:
In an area of law such as this, we would be remiss if we failed to consider also the overall purpose for which this statute was enacted. The commentators agree that state statutes such as ours were enacted to supplement federal legislation, so that local business interests could not proceed with impunity, secure in the knowledge that the dimensions of their transgression would not merit federal action.
Id. at 549, 276 S.E.2d at 403. The North Carolina Supreme Court also stated that “[i]n enacting [§ 75-1] and [§ 75-1.1], our Legislature intended to establish an effective private cause of action for aggrieved consumers in this State” because “common law remedies had proved often ineffective.” Id. at 543, 276 S.E. at 400. Moreover, the commentators agree that the North Carolina Unfair Trade Practices Act grew out of antitrust laws in an effort to protect the consuming public from anticompetitive business practices. See Morgan, The Peo-pie’s Advocate in the Marketplace — The Role of the North Carolina Attorney General in the Field of Consumer Protection, 6 Wake Forest L.Rev. 1, 12 (1969). The North Carolina Supreme Court’s discussion of the purpose behind § 75-1.1, although not dispositive of this case, gives some guidance on the potential scope of that section.
Two North Carolina eases have limited the potential scope of § 75-1.1. In Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 248 S.E.2d 567 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979), the North Carolina Court of Appeals held that commodities transactions are not within the ambit of § 75-1.1. The court held that the “pervasive” federal scheme for regulating commodities transactions militated against finding a state cause of action under § 75-1.1. The court also recognized that a finding that one party’s conduct violated § 75-1.1 would expose it to a host of legislatively created sanctions in addition to those sought in the suit. Based on these concerns, the court held that “Congress has clearly expressed its intent to exercise exclusive jurisdiction over the activity of the commodity exchanges and has provided elaborate administrative procedures for the redress of grievances” pursuant to the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (1976). 38 N.C.App. at 418, 248 S.E.2d at 570.
Similarly, in Buie v. Daniel International Corp., 56 N.C.App. 445, 289 S.E.2d 118 (1982), cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982), the North Carolina Court of Appeals held that employer-employee relationships did not fall within the intended scope of § 75-1.1. The court reasoned that “[ejmployment practices fall within the purview of other statutes adopted for that express purpose.” 56 N.C.App. at 448, 289 S.E.2d at 120. Although neither Hunsucker nor Buie are directly dispositive of this case, both cases stand for the proposition that the presence of other federal or state statutory schemes may limit the scope of § 75-1.1.
We find it significant that no state court has held that its Unfair Trade Practices Act applies to securities transactions. In fact, courts in three states, Rhode Island, South Carolina, and Washington, have held that their state Unfair Trade Practices Act has no application to securities transactions. State v. Piedmont Funding Corp., 119 R.I. 695, 382 A.2d 819 (1978); State ex rel. McLeod v. Rhoades, 275 S.C. 104, 267 S.E.2d 539 (1980); Kittilson v. Ford, 23 Wash.App. 402, 595 P.2d 944 (1979), aff'd, 93 Wash. 223, 608 P.2d 264 (1980). In each case the state court held that its Unfair Trade Practices Act did not apply to securities transactions because of a particular statutory provision exempting “actions or transactions permitted under laws administered by any regulatory body” of the state or the United States. Although the presence of that statutory exemption makes Piedmont Funding, Rhodes and Kittilson distinguishable from this case, those cases, together with the absence of any other state court decision holding securities transactions subject to the state’s Unfair Trade Practices Act, provide some indication of the general scope of such acts.
We also find it significant that § 75-1.1 is reproduced verbatim from § 5 of the FTC Act, 15 U.S.C. § 45(a)(1) (1982), and that the courts interpreting and applying § 75-1.1 have deemed it appropriate “to look to the federal decisions interpreting the FTC Act for guidance in construing the meaning of G.S. § 75-1.1.” Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 262, 266 S.E.2d 610, 620 (1980) (citing Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975)). See also ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984). Thus, the fact that no federal court decision has applied § 5(a)(1) of the FTC Act to securities transactions is additional evidence of the scope of § 75-1.-I. Moreover, at least one district court has relied upon the scope of § 5(a)(1) of the FTC Act in holding that securities transactions were not subject to a Massachusetts statute which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conkling v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 575 F.Supp. 760, 761 (D.Mass.1983) (interpreting Mass.Gen.Laws Ann. ch. 93A § 2(a) (1972)). Accord, Sweeney v. Keystone Provident Life Insurance Co., 578 F.Supp. 31, 35 (D.Mass.1983).
The plaintiffs argue that § 75-1.1 applies to securities transactions because North Carolina courts have applied that section in a variety of commercial settings. See, e.g., Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980) (transaction between a mortgage broker and a borrower for the exclusive right to place permanent mortgage financing); Kent v. Humphries, 50 N.C.App. 580, 275 S.E.2d 176 (1981), aff'd and modified, 303 N.C. 675, 281 S.E.2d 43 (1981) (rental of commercial property); Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271 (1980) (unfair methods of competition in the insurance business). See also United Roasters, Inc. v. Colgate-Palmolive Co., 485 F.Supp. 1041 (E.D.N.C. 1979), aff'd on other grounds, 649 F.2d 985 (4th Cir.1981), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981) (bulk sale of business’ assets); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir. 1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (antitrust action brought by tire dealer against tire manufacturer). While it is true that North Carolina and federal courts have applied § 75-1.1 in a variety of commercial settings, that fact does not mean that § 75-1.1 applies to all commercial transactions or to securities transactions. Nor does it mean that the purposes behind the enactment of § 75-1.1 may no longer serve as some indication of its scope. In most of the cases cited above, the defendants anti-competitive conduct necessarily injured the consuming public.
We think that the North Carolina Supreme Court would hold, if presented with this issue, that securities transactions are beyond the scope of § 75-1.1. Our decision is consistent with § 75-1.1’s purpose to protect the consuming public, the North Carolina eases holding that other federal or state statutes may limit the scope of § 75-1.1, the absence of any other state court decision holding that securities transactions are subject to a similar Unfair Trade Practices Act, and the absence of any federal court decision holding that securities transactions are subject to § 5(a)(1) of the FTC Act. We do not believe that the North Carolina legislature would have intended § 75-1.1, with its treble damages provision, to apply to securities transactions which were already subject to pervasive and intricate regulation under the North Carolina Securities Act, N.C.Gen.Stat. § 78A-1 et seq. (1981), as well as the Securities Act of 1933, 15 U.S.C. § 77a et seq. (1982), and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (1982). Furthermore, to hold that § 75-1.1 applies to securities transactions could subject those involved with securities transactions to overlapping supervision and enforcement by both the North Carolina Attorney General, who is charged with enforcing § 75-1.1, and the North Carolina Secretary of State, who is charged with enforcing the North Carolina Securities Act. For all of these reasons, we hold that whatever the scope of § 75-1.1, securities transactions are beyond the reach of the North Carolina Unfair Trade Practices Act.
III
The second issue presented is whether the district court abused its discretion in denying the plaintiffs’ motion for a new trial on their claim for breach of fiduciary duty. It is well settled that “the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal, save in the most exceptional circumstances.” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir.1941); City of Richmond v. Atlantic Co., 273 F.2d 902, 916-17 (4th Cir.1960). In this case the district court instructed the jury that defendants Cralle, Schoenhut, Bigelow, Rodenhizer and Spann owed a fiduciary duty to the plaintiffs as minority shareholders of Durham Hosiery “as a matter of law.” N.C.Gen.Stat. § 55-35 (1982). The district court likewise instructed the jury that if it found that defendant Barnett was a majority shareholder of Durham Hosiery at the time the Proxy Statement was issued, a fiduciary relationship also existed between Barnett and the plaintiffs as a matter of law. The plaintiffs do not challenge the district court’s charge to the jury but argue that the verdict is against the manifest weight of the evidence. Based upon our review of the record, we are unable to conclude that the district court abused its discretion in denying the plaintiffs’ motion for a new trial. Accordingly, the judgment of the district court is
AFFIRMED.
. This action is but one of several in the federal courts arising out of the merger and reorganization of Durham Hosiery Mills, Inc. In White v. Durham Hosiery Mills, Inc., 753 F.2d 1072 (4th Cir.1985), another panel of this Court affirmed a jury verdict awarding a former minority shareholder compensatory damages of $25,900 and punitive damages of $50,000 on his action for misrepresentation under Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983). Two actions brought by five other shareholders are presently pending in the United States District Court for the Middle District of North Carolina. See Umstead v. Durham Hosiery Mills, Inc., 578 F.Supp. 342 (M.D.N.C.1984); Teer v. Durham Hosiery Mills, Inc., 592 F.Supp. 1269 (1984).
. On January 9, 1981, plaintiff Lindner filed a complaint in the district court for the Western District of Virginia for the purpose of obtaining an injunction to postpone the shareholder meeting scheduled for January 12. On the morning of January 12, however, the district court concluded that Lindner had failed to show any irreparable injury from the holding of the meeting and the merger due to the availability of his appraisal remedy under state law.
. But see Hickey v. Howard, 598 F.Supp. 1105 (D.Mass.1984) (holding that Massachusetts statute proscribing unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce, and providing for treble damages, is applicable to securities transactions); Mitchelson v. Aviation Simulation Technology, Inc., 582 F.Supp. 1 (D.Mass. 1983) (same). However, two other judges in the United States District Court for the District of Massachusetts have held that this Massachusetts statute does not apply to securities transactions. See Moseley and Sweeney, infra.
. This fact makes the instant case clearly distinguishable from ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir.1983), and Bostic Oil Corp. v. Michelin Tire Corp., 702 F.2d 1207 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983). In those cases this court held that proof of conduct violative of § 1 of the Sherman Act is proof sufficient to establish a violation of the North Carolina and South Carolina Unfair Trade Practices Acts. But a key to those decisions was this court’s observation that "it is an accepted tenet of basic antitrust law that § 5 of the [FTC] Act sweeps within its prohibitory scope conduct also condemned by § 1 of the Sherman Act." ITCO, 722 F.2d at 48 (citing FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922)).
. See footnote 3, supra.
. See footnote 4, supra.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_respond2_2_2
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
MORRIS COUNTY TRUST FOR HISTORIC PRESERVATION, Morris County Historical Society, and Robert Thompson v. PIERCE, Samuel R., in His Capacity as Secretary of the United States Department of Housing and Urban Development; Town of Dover Redevelopment Agency, a body corporate and politic of the State of New Jersey; and Frank Dill, in His Capacity as Building Inspector of the Town of Dover. Appeal of Samuel R. PIERCE, Secretary of Housing and Urban Development.
No. 82-5656.
United States Court of Appeals, Third Circuit.
Argued on June 7, 1983.
Decided July 29, 1983.
Rehearing and Rehearing En Banc Denied Oct. 3,1983.
Carol E. Dinkins, Asst. Atty. Gen., W. Hugh Dumont, U.S. Atty., Lorraine S. Ger-son, Asst. U.S. Atty., Newark, N.J., Peter R. Steenland, Jr., Martin Green (argued), Attys., Dept, of Justice, Washington, D.C., for appellants.
Mark L. First (argued), Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, N.J., for appellees.
Before SEITZ, Chief Judge, SLOVITER, Circuit Judge and POLLAK, District Judge.
Honorable Louis H. Poliak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SEITZ, Chief Judge.
Samuel R. Pierce, Secretary of the United States Department of Housing and Urban Development (hereinafter referred to as HUD), appeals an order of the district court permanently enjoining demolition of the Old Stone Academy by the Town of Dover Redevelopment Authority (TDRA) until HUD conducts a historical and cultural resource review pursuant to section 106 of the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1976 & Supp.1982), and an environmental clearance pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1976). This court has jurisdiction under 28 U.S.C. § 1291 (1976).
I.
The following facts are undisputed. In 1968, HUD approved an Urban Renewal Plan submitted by the Town of Dover, New Jersey. Among its provisions, the Plan directed that all of the buildings along Dickerson Street would be demolished. Dickerson Street would then be widened, additional parking would be provided, and a new traffic pattern would be established for easy flow and access for the remaining commercial district on Blackwell Street.
One of the buildings slated for demolition according to the plan is the Old Stone Academy. Constructed in 1829, just a few years after Dover’s incorporation and first development, the Old Stone Academy was the Town’s first general public building.
In 1969, HUD and the Town of Dover signed a Loan and Capital Grant Contract pursuant to Title I of the Housing Act of 1949, 42 U.S.C. § 1450 (1976). The Contract provided the funds necessary to undertake the previously approved Urban Renewal Plan, and to carry out the slum clearance and redevelopment of the area. The Loan and Capital Grant Contract was closed out on April 16, 1982, after which time TDRA continued to be funded through a short-term, direct-financing Federal loan.
Defendant TDRA is a body corporate and politic of the State of New Jersey, created by the Town of Dover and charged with implementing the Urban Renewal Plan for the Dickerson Street Urban Renewal Area Project. TDRA acquired ownership of the Stone Academy in December of 1978. On July 7, 1980, TDRA voted to execute the demolition of the building.
Following several skirmishes with TDRA in the courts of the State of New Jersey, appellees Morris County Trust for Historic Preservation, et al. (MCTHP) filed a complaint in the United States District Court for the District of New Jersey. Based on allegations that HUD failed to comply with the environmental and historical review requirements of NEPA and NHPA concerning the proposed demolition of the Stone Academy, MCTHP requested that the demolition of the structure be enjoined until HUD complies with its various statutory and regulatory responsibilities. The parties consented, pursuant to Fed.R.Civ.P. 65(b), to the consolidation of the trial of the action on the merits with the plaintiffs’ application for a preliminary injunction. The district court, agreeing in large part with MCTHP’s contentions, entered an order enjoining the demolition of the Stone Academy until such time as HUD conducts a historical and cultural resource review pursuant to NHPA and an environmental clearance pursuant to NEPA. HUD filed a timely notice of appeal.
II. NEPA
Congress enacted NEPA in 1969 in order “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” 42 U.S.C. § 4321.
NEPA is primarily a procedural statute, Stryckers Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979), designed to ensure that environmental concerns are integrated into the very process of agency decision-making. Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1978); see Baltimore Gas & Electric Co. v. NRDC,-U.S.-,-, 103 S.Ct. 2246, 2251, 76 L.Ed.2d 437 (1983) (NEPA requires federal agencies to take a “hard look” at environmental consequences before taking a major action). An additional goal of NEPA is to inform the public that an agency has considered environmental concerns in its decision-making process. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 142-43, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). To accomplish these ends, NEPA provides, inter alia, that
it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—
******
(4) preserve important historic, cultural, and natural aspects of our national heritage.
42 U.S.C. § 4331(b) (emphasis added).
The heart and soul of NEPA is the requirement that Federal agencies, before taking action that may have a significant effect on the environment, must prepare a detailed environmental impact statement (EIS). In the terms of the statute:
The Congress authorizes and directs that, to the fullest extent possible... (2) all agencies of the Federal Government shall—
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(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
42 U.S.C. § 4332(2)(C) (emphasis added). Once accomplished, an environmental review under NEPA does not necessarily dietate any substantive outcome: the statute is merely intended to make decision makers aware of the potential environmental ramifications of their actions. Township of Lower Alloways Creek v. Public Service Electric, 687 F.2d 732, 739 n. 13 (3d Cir. 1982).
In the present case, it is undisputed that. HUD at no time prepared an environmental impact statement concerning the Dover Urban Renewal Project or considered whether an EIS was necessary. HUD argues that its inaction did not violate NEPA because the effective date of NEPA, January 1, 1970, succeeded the signing of the Loan and Capital Grant Contract by one year, and HUD’s approval of the Urban Renewal Plan by two years.
The district court held, inter alia, that “NEPA [is] applicable to the ongoing Dickerson Street Urban Renewal Project because HUD has remained meaningfully involved in the Project after the date of its approval of the Urban Renewal Plan and the date of execution of the Loan and Capital Grant Contract.” In the district court’s view, HUD’s continuing involvement in the project constituted “major federal action” within the meaning of 42 U.S.C. § 4332(2)(C), thus triggering the environmental review provisions of the Act. Our standard of review of the district court’s holding is plenary.
A. Major Federal Action
HUD’s position is that in cases where the Federal government provides funding for an urban renewal project, major federal action occurs only when the Federal government initially approves the proposed plan or any major amendment to the plan. See 47 Fed.Reg. 56271 (Dec. 15, 1982) (current interim rule); 24 C.F.R. § 50.62 App. A (1982) (prior HUD regulations). HUD relies on several cases which so hold. See e.g., San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024-25 (9th Cir.1973); Sworob v. Harris, 451 F.Supp. 96, 107 (E.D.Pa.), aff’d without opinion, 578 F.2d 1376 (3d Cir.1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979).
By contrast, appellees suggest that the words “major federal action” also require compliance with NEPA at any stage of the implementation of a federally-assisted project where a Federal agency has authority to require alteration of building or design plans to enhance the environment. This construction of NEPA, adopted by the district court, also finds support in several cases. See People Against Nuclear Energy v. United States Nuclear Regulatory Commission, 678 F.2d 222, 231 (D.C.Cir.1982), reversed on other grounds sub nom, Metropolitan Edison Co. v. People Against Nuclear Energy, - U.S. -, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983); WATCH v. Harris, 603 F.2d 310, 318, 326 (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); Hart v. Denver Urban Renewal Authority, 551 F.2d 1178, 1182 (10th Cir.1977); Jones v. Lynn, 477 F.2d 885, 890-91 (1st Cir.1973).
In choosing between these suggested interpretations of “major federal action”, we begin by noting that NEPA neither provides a definition of major federal action, nor addresses the statute’s applicability to ongoing projects approved before the effective date of NEPA. The statute does say, however, that the environmental policies underlying NEPA should be implemented “to the fullest extent possible”, 42 U.S.C. § 4332, and that it is the “continuing responsibility” of the Federal government to preserve important historic, cultural, and natural aspects of our national heritage. 42 U.S.C. § 4331(b)(4). We think these statements, albeit indirectly so, support the district court’s holding that NEPA should be applicable to federally-assisted projects which were initiated prior to 1970 but which remain subject to the authority of a Federal agency to review the implementation of the project on a stage by stage basis. See Concerned Citizens of Bushkill Township v. Costle, 592 F.2d 164, 169, 171 (3d Cir.1976) (because NEPA places “continuing” responsibility on Federal government to consider environmental effects of Federal action, Federal agencies should continue to consider the environmental effects of an ongoing project until there has been an irretrievable commitment of resources); cf. NAACP v. Medical Center, Inc., 584 F.2d 619, 634 (3d Cir.1978) (when Federal agency may act to prevent the environmental consequences of another’s actions, responsibility for those consequences may be fairly considered that of the federal agency for purposes of major “federal” action under NEPA).
Appellees’ interpretation of “major federal action” as including continuing Federal authority also finds support in regulations drafted by the Council on Environmental Quality. 40 C.F.R. § 1500 et seq. (1982). By virtue of Executive Order No. 11991, 3 C.F.R. 124 (1978), these regulations are binding on all federal agencies. People Against Nuclear Energy v. Nuclear Regulatory Commission, 678 F.2d at 231 n. 13 (CEQ guidelines made binding in order to establish uniform procedures for implementing NEPA and to eliminate inconsistent agency interpretations). Consequently, the Supreme Court has held that the CEQ guidelines are entitled to substantial deference in interpreting the meaning of NEPA provisions, even when CEQ regulations are in conflict with an interpretation of NEPA adopted by one of the Federal agencies. Andrus v. Sierra Club, 442 U.S. at 358, 99 S.Ct. at 2341 (CEQ’s interpretation given precedence over contrary interpretation of NEPA adopted by Department of Interior).
Relevant regulations promulgated by CEQ provide that major federal action within the meaning of NEPA includes “new and continuing activities... with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18(a) (1982) (emphasis added). Moreover, the guidelines also provide that “NEPA shall continue to be applicable to actions begun before January 1, 1970, to the fullest extent possible.” 40 C.F.R. § 1506.12 (1982) (emphasis added). In our view, these regulations provide impressive support for the district court’s interpretation of major federal action.
The terms of Executive Order No. 11593, 36 Fed.Reg. 8921 (1971) provide further confirmation of the district court’s interpretation of “major federal action”. This Order states that, “[t]he Federal Government shall provide leadership in preserving, restoring, and maintaining the historic and cultural environment of the nation. Agencies of the executive branch of the government... shall (1) administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations...” The requirement that Federal agencies administer properties under their control in accordance with historic preservation goals is substantially similar to the district court’s holding that an agency must comply with NEPA at any stage of an ongoing project when it may demand an alteration of the project to conform with environmental goals.
Finally, we note that the district court’s interpretation of “major federal action” is consistent with the purpose of NEPA. By requiring Federal agencies to consider the environmental consequences of action for which they are responsible, Congress’ ultimate goal was to prevent environmental damage which is not justified by a countervailing federal interest. Cape May Greene, Inc. v. Warren, 698 F.2d 179, 188 (3d Cir.1983) (NEPA requires balancing between environmental costs and economic and technical benefits). Surely the environmental disturbance caused by a federally-assisted project is' no less significant because of the date of the planning of the project. Jones v. Lynn, 477 F.2d at 888.
HUD does not argue that appellees’ suggested interpretation of NEPA would place undue administrative burdens on the urban renewal process. As HUD acknowledged at oral argument, the district court’s interpretation of NEPA would not necessarily require a Federal agency to prepare an entirely new EIS at each stage of an ongoing project which presents an opportunity for the Federal agency to alter the original plan. For example, an EIS would be unnecessary in cases where a more brief “environmental assessment” would suffice, or when federal action falls within a “categorical exclusion”.
Also, in cases where an EIS or an environmental assessment has already been prepared with regard to a project, a new assessment or EIS would be necessary only when newly acquired information or an environmentally significant change in the project reveals that the prior assessment or EIS is no longer adequate. See 47 Fed.Reg. 56273 (December 15, 1982) (HUD interim rule implementing NEPA) (environmental assessment need be reevaluated and updated only when “the basis for the original environmental finding is affected by a major change requiring HUD approval in the nature, magnitude or extent of a project and the project is not yet complete”); Township of Springfield v. Lewis, 702 F.2d 426, 446 & n. 38 (3d Cir.1983) (courts must allow involved agencies leeway to make a reasoned determination that new studies and information do not require revising and recirculating an EIS). Finally, no environmental assessment or EIS need be prepared for those aspects of a project for which an irretrievable commitment of resources has already produced most of the environmental harm which an EIS would have anticipated. Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir.1977); see Jones v. Lynn, 477 F.2d at 889 (NEPA only requires a meaningful review of Federal action).
Based on our review of the statutory language of NEPA as well as its purpose and implementing regulations, we believe the district court did not err in interpreting the words “major federal action” to require compliance with NEPA at any stage of an ongoing, Federally-assisted project begun prior to 1970 at which a Federal agency has authority to alter the substance of that project. Such an application of NEPA is not retroactive, but prospective, since it seeks “to alter, within proper limits, the aspects of a proposal which have not yet been completed, and not to undo anything which has already proceeded to final [completion]” prior to the effective date of NEPA. Jones v. Lynn, 477 F.2d at 889.
B. Continuing Authority
The district court held that HUD exercised continuing authority over the Dover Urban Renewal Project after January 1, 1970 by virtue of the provisions of the Dover Loan and Capital Grant Contract. Section 108(A) of the Contract requires the local public agency, in this case TDRA, to furnish HUD promptly with documentary data concerning any proposed actions of the local agency pertaining to the project. According to Section 108(B) of the Contract, the purpose of the data submission requirement is to afford HUD the opportunity to “insure that the Local Public Agency shall not take any step which might, in the opinion of the Secretary, violate applicable Federal laws or regulations or provisions of [the] contract....” Section 108(B) authorizes HUD to inform the local agency in writing of its objection to a proposed step, and to refuse a requested payment if the agency proceeds without securing the prior approval of the Secretary of HUD.
Section 108 of the Loan and Capital Grant Contract remained applicable in full until March of 1980, when HUD apprised local agencies, including TDRA, that they were no longer required to comply with the data furnishing provisions of that section. Subsequently, TDRA discontinued submitting data previously required by section 108.
We agree with the district court that, at least until March of 1980, the Loan and Capital Grant Contract provided HUD with sufficient authority over the Dover Urban Renewal Plan to constitute major federal action. Specifically, every instance of data submission by TDRA, as required by section 108(A), provided HUD with an opportunity to alter the plan upon a determination that such action would be necessary for compliance with Federal laws or regulations. Thus, we hold that on at least one of the several occasions between January 1, 1970 and March of 1980 when it accepted data submitted by TDRA concerning the Dover Urban Renewal Project, HUD should have complied with the procedural requirements of NEPA and its implementing regulations.
III. NHPA
Congress enacted NHPA in 1966 in order to “accelerate [the] historic preservation programs and activities [of the Federal Government], to give maximum encouragement to agencies and individuals undertaking preservation by private means, and to assist state and local governments and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities”. 16 U.S.C. § 470(b)(7) (Supp.1982).
NHPA, like NEPA, is primarily a procedural statute, designed to ensure that Federal agencies take into account the effect of Federal or Federally-assisted programs on historic places as part of the planning process for those properties. In this regard, NHPA requires that Federal agencies
shall, prior to the expenditure of any federal funds on [an] undertaking... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation... a reasonable opportunity to comment with regard to such undertaking.”
16 U.S.C. § 470f.
It is undisputed that HUD did not at any time take into account the effect of the Dover Renewal Plan on the Stone Academy, or afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the project. HUD’s position is that the NHPA language “prior to the approval of any federal funds on [an] undertaking” refers only to the original approval of an urban renewal plan and any major amendatory to the plan which requires HUD approval. See Hart v. Denver Urban Renewal Authority, 551 F.2d 1178, 1180 (10th Cir.1977); South Hill Neighborhood Association v. Romney, 421 F.2d 454, 462 (6th Cir.1969); cert. denied, 397 U.S. 1025, 90 S.Ct. 1261, 25 L.Ed.2d 534 (1970), San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025 (9th Cir.1973); Sworob v. Harris, 451 F.Supp. 96, 106 (E.D.Pa.1978). HUD argues that its failure to undertake an historic resource review with regard to the Stone Academy did not violate NHPA because the building was neither listed nor eligible for listing in the National Register for Historic Places until 1982, well after the date of original approval of the Dover Urban Renewal Plan, or of any major amendatory to the Plan.
The district court adopted a somewhat broader interpretation of NHPA, holding that the statute applies at every stage where a federal agency retains authority to approve funding for, and to provide a meaningful review of federally assisted projects which affect historic properties. The court went on to say, inter alia, that “[a]s long as HUD retains the authority to make funding approvals and give continuous permission to acquire properties, demolish buildings, and change the Urban Renewal Plan, primarily under Section 108 of the Loan and Capital Grant Contract, Section 106 of the National Historic Preservation Act applies to require HUD and the Advisory Council on Historic Preservation to give weight to the impact which undertakings have upon historic places.” See WATCH v. Harris, 603 F.2d 310, 326 (2d Cir.1979); Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323, 1339 (S.D.N.Y.1975). Again, our standard of review is plenary.
A. Prior to the Approval of the Expenditure of Any Federal Funds
We begin the task of discerning the proper interpretation of NHPA by noting that the language of NHPA could accommodate either of the different interpretations urged upon us. As the Second Circuit noted in WATCH:
[Some of the language of NHPA suggests] that even a preliminary authorization [of Federal funds] amounts to a cutoff [date for the application of NHPA], Thus, the first sentence of § 106 states that a federal agency having jurisdiction over a “proposed Federal or federally-assisted undertaking” (emphasis added) shall consider its effect on listed properties. And the language “any” in the phrase “prior to the approval of the expenditure of any Federal funds” might refer to the initial funding only. On the other hand, the language also supports the interpretation that the preliminary approval is not a cut-off. The term “proposed” might simply be shorthand for “proposed or continuing”, and “any” might mean any expenditure of federal funds, not the expenditure of initial funds. Moreover, if the statute intended to establish a cutoff once an agency gave preliminary approval to expenditures, one might expect it to read “prior to the approval of the undertaking,” rather than prior to the approval of the expenditure of any Federal funds on the undertaking.”
603 F.2d at 320.
Our review of the legislative history of NHPA also reveals no dispositive answer concerning the proper interpretation of the statute’s applicability to ongoing projects. See WATCH v. Harris, 603 F.2d at 320-323 (summarizing relevant legislative history). The legislative history of NHPA does indicate, however, that Congress designed the statute to draw a meaningful balance between the goals of historic preservation and community development. For example, the House Report accompanying the statute explains that NHPA is an “effort to establish the most effective preservation program possible..: which is consistent with the necessity for progress within our communities.” H.R.Rep. No. 1916, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 3307, 3309. Later in the same Report, the aim of the statute is described as to strike a “meaningful balance... between preservation of... important elements of our national heritage and new construction to meet the needs of our ever growing communities and cities”. Id.
The interpretation of NHPA adopted by the district court, that NHPA is applicable to an ongoing project at any stage where a Federal agency has authority to approve or disapprove Federal funding and to provide meaningful review of both historic preservation and community development goals, closely parallels the purpose of the statute. By contrast, the interpretation of NHPA suggested by HUD would have the applicability of NHPA turn on fortuitous elements unrelated to the policy goals of the statute, elements such as the date of an ongoing project’s initial approval and the possible existence of any major amendatories to the plan.
The district court’s interpretation of NHPA is further corroborated by regulations drafted by the Advisory Council on Historic Preservation. These regulations, adopted by HUD, 47 Fed.Reg. 56269 (Dec. 15,1982), provide that “[a]s early as possible before an agency makes a final decision concerning an undertaking and in any event prior to taking any action that would foreclose alternatives or the Council’s ability to comment, the Agency Official shall take [appropriate] steps to comply with the requirements of Section 106 of the National Historic Preservation Act and Section 2(b) of Executive Order 11593.” Id.
Significantly, Advisory Council regulations define “decision” as “the exercise of or the opportunity to exercise discretionary authority by a federal agency at any stage of an undertaking where alterations might be made in the undertaking to modify its impact upon National Register and eligible properties.” 36 C.F.R. § 800.2(h) (1982). “Undertaking” is defined by the Advisory Council as “any Federal, federally-assisted or federally-licensed action, activity, or program or the approval, sanction, assistance, or support of any non-Federal action, activity, or program. Undertakings include new and continuing projects...” 36 C.F.R. § 800.2(c) (1982).
Read together, these Advisory Council regulations require that NHPA be applied to ongoing Federal actions as long as a Federal agency has opportunity to exercise authority at any stage of an undertaking where alterations might be made to modify its impact on historic preservation goals. This stage by stage approach is almost identical to the interpretation of NHPA subscribed to by the district court, and almost wholly at odds with HUD’s suggested interpretation.
As the Second Circuit noted in WATCH v. Harris, the Advisory Council’s regulations are particularly persuasive concerning the proper interpretation of NHPA, given Congress’ subsequent consideration of those regulations combined with its failure to change any construction provided for therein. 603 F.2d at 324; see Udall v. Tallman, 380 U.S. 1, 17-18, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1964). According to the Second Circuit, the Senate Report’s decision to append two reports of the Advisory Council to a 1976 amendment to NHPA suggests that Congress was aware of the Council’s regulations but chose not to change them. Id. at 325.
At this later date, we have even more reason to believe that Congress has implicitly approved the Advisory Council’s interpretation of NHPA. The House Report accompanying certain 1980 amendments to NHPA demonstrates Congress’ knowledge and approval of certain of the Advisory Council regulations with which we are concerned today.
The Committee also notes that the term “undertaking”, as it is used in other sections of the Act, is meant to be used in the same context as described in Section 106. The Advisory Council on Historic Preservation has adopted an acceptable definition within its regulations, published as 36 C.F.R. 800. The Committee intends that the council take a “reasonable effort” approach in guiding Federal agencies in carrying out their preservation responsibilities. This means that the degree of Federal involvement in an undertaking and the relation of that involvement to the effects on an historic property should both be considered when an agency determines the actions it will take, or which it requires an applicant to take, to comply with the provisions of this Act and its implementing regulations.
H.R.Rep. No. 96-1457, 96th Cong., 2d Sess., reprinted in 1980 U.S.Code Cong. & Ad. News 6408. Although we are aware of the dangers of inferring Congressional intent from inactivity, we believe it is proper to do so where, as here, the interpretation adopted by the regulations in question is consistent with the purpose of the statute and its legislative history. See Merrill, Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381-83, 102 S.Ct. 1825, 1841-42, 72 L.Ed.2d 182 (1982).
HUD’s principal objection to the district court’s interpretation of NHPA is that it would convert “each review and funding action designed to ensure the integrity of the original project into a new opportunity to delay or halt the project; every action taken by HUD under the contract to make sure that the project is on course will present an opportunity to deflect it. Clearly, this is a construction of the statute which places too great an administrative burden on the urban renewal process.” See South Hill Neighborhood Association v. Romney, 421 F.2d 454, 462 (6th Cir.1969) (making similar objection in NEPA case).
The Second Circuit dismissed this objection in WATCH v. Harris by reasoning that “[sjurely the courts would respect reasonable agency procedures for updating past reviews. Similar requirements under NEPA have not proved unworkable.” 603 F.2d at 324 n. 30. Given this Court’s well-established tradition of refusing to place upon Federal agencies meaningless and otherwise unreasonable procedural burdens, see Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir.1977) (NEPA case), we cannot but agree with the Second Circuit’s conclusion.
B. Opportunity to Exercise Authority
The district court held that, by virtue of Sections 108(A) and (B) of the Loan and Capital Grant Contract, HUD maintained continuing supervision over the implementation of the Dover Urban Renewal Project sufficient to trigger the requirements of NHPA. The district court made no attempt, however, to correlate the period during which sections 108(A) and (B) were effective with the status of the Stone Academy vis-a-vis the National Register for Historic Places.
As originally enacted in 1966, NHPA required a historical review only of properties that were listed in the National Register. In 1976, however, Congress amended the statute to require Federal agencies to “take into account the effect of [a Federal or Federally-assisted project] on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f (emphasis added). The Advisory Council’s regulations define “eligible property” as “any district, site, building, structure, or object that meets the National Register criteria.” 36 C.F.R. § 800.2(f) (1982).
Although the Stone Academy was not actually entered in the National Register until May 21, 1982, we believe it met the National Register criteria in 1976, based on the Stone Academy’s 1982 inclusion in the National Register. Therefore, in evaluating the authority vested in HUD by the Loan and Capital Grant Contract, our task is to locate at least one occasion in 1976 or thereafter on which HUD could have demanded an alteration of the Urban Renewal Project.
The record shows that between 1976 and 1980, the Town of Dover at regular intervals submitted data to HUD concerning proposals for implementation of the Dover Urban Renewal Plan. By the terms of sections 108(A) and (B) of the Loan and Capital Grant Contract, each of these occasions provided an opportunity for HUD to demand alterations in the Plan, and to withhold Federal funding if the demand was not met. Therefore, we hold that on at least one of these occasions, HUD should have complied with the procedural requirements of NHPA. Consequently, we believe it was not error for the district court to enjoin the demolition of the Old Stone Academy until HUD conducts a historical resource review pursuant to NHPA.
IV. Conclusion
TDRA has not argued that both NEPA and NHPA either cannot or should not be held applicable to the Old Stone Academy. Cf. WATCH v. Harris, 603 F.2d at 318 (noting argument); id. at 326 (Lumbard, J., concurring) (because NEPA applies to proposed demolition of historic building, no need to consider applicability of NHPA).Current regulations envision that both statutes may be applied simultaneously, and provide procedures by which a single document may often satisfy an agency’s responsibilities under both NEPA and NHPA. See 36 C.F.R. § 800.9 (1982); 40 C.F.R. §§ 1502.25, 1506.4 (1982).
The district court’s order enjoining the demolition of the Old Stone Academy until such time as HUD conducts an historical and cultural resource review of the Academy pursuant to NHPA and an environmental clearance pursuant to NEPA, and presents those studies to the district court for approval upon notice to plaintiff, will be affirmed.
. Previously, CEQ had been authorized by Executive Order No. 11514, § 3(h), only to issue nonbinding “guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment.” 3 C.F.R. § 904 (1966-70 Comp.); Andrus v. Sierra Club, 442 U.S. at 353 n. 10, 99 S.Ct. at 2339 n. 10.
. CEQ guidelines define an environmental assessment as follows:
“Environmental Assessment”:
(a) means a concise public document for which a Federal agency is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.
(2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed actions and alternatives, and a listing of agencies and persons consulted.
40 C.F.R. § 1508.9 (1982).
. CEQ guidelines define a “categorical exclusion” as follows.
“Categorical Exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
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songer_interven
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
HARTFORD FIRE INS. CO. v. DOLL.
Circuit Court of Appeals, Seventh Circuit.
January 5, 1928.
No. 3892.
1. Insurance <®=539(6) — Failure of insured because of injury to give six-day notice required by fire policy did not bar right to maintain suit.
Failure of insured to give six days’ notice of loss in accordance with requirement of fire policy held not to have barred his right to maintain suit thereon, where failure was due to injury to insured and notice was given by company’s agent, particularly in view of provision of policy in effect contemplating that policy provision for notice would, in practice, be complied with through agent’s report.
2. Insurance <3=668(10) — Evidence as to progress of fire before building fell during tornado he!d for jury.
In suit on fire insurance policy containing a provision to effect that insurance would cease if building should fall, except as result of fire, evidence as to progress of fire before building fell during tornado held sufficient for jury.
3. Insurance <@=>421 — Insurer, under policy excepting liability in case building falls before fire, is liable for entire loss resulting from fire starting before tornado destroyed building.
Where fire policy provided that insurance ■would cease if building fell, except ás result of fire, insurer is liable for entire loss resulting from destruction by fire, which started before building fell during’ tornado.
4. Insurance <@=>499 — Measure of recovery for insured’ property, burning after building fell during tornado, is value at time it burned. '
Measure of recovery under policy providing that insurance should cease if building fell, except as result of fire, is value of property at time it burned, in the condition in whic;h it then was.
In Error to the District Court of the United States for the Evansville Division of the District of Indiana.
Action by George J. Doll against the Hartford Eire Insurance Company. Judgment for plaintiff, and defendant brings error.
Eemanded, with directions.
Burke G. Slaymaker, of Indianapolis, Ind. (Myers & Snerly, of Chicago, Ill., and Slaymaker, Turner, Merrell, Adams & Locke, 'of Indianapolis, Ind., on the brief), for ¡plaintiff in error.
Woodfin D. Eobinson, of Evansville, Ind., for defendant in error.
Before ALSCHULEE, PAGE, and ANDEESON, Circuit Judges.
ALSCHULER, Circuit Judge.
This controversy grows out of two fire insurance policies issued by plaintiff in error company to defendant in error Doll, one for $2,000 on his stock of general merchandise and store fixtures, and one for $6,000, being $5,000 on the merchandise and $1,000 on store fixtures, all contained in a brick store building in Griffin, Ind. Two clauses of the policies are involved, viz.:
“If fire occur the insured shall within six days give notice of any loss thereby in writing to this company.”
“If a building or any part thereof fall, except as the result of fire, all insurance by ■ this policy on such building or its contents shall immediately cease.”
There are involved, also, the questions whether the judgment finds support in the evidence, and of the correctness of the court’s charge respecting the measure of recovery.
Griffin was visited by a tornado, which destroyed all but 4 of its 75 houses, killing 50 of its inhabitants, and injuring others. Doll’s store fell, and he was severely injured, being rendered unconscious for some days, blind for several weeks, and confined during that time, and some weeks more, in a hospital 25 miles away.
There was evidence to the effect that, just before the tornado struck, there was fire in the merchandise, counter, and shelving on the. south side of the store, near a stove in which there was a hot coal fire burning. Following the building’s fall, the inflammable debris, including the fallen merchandise, was burned; all of the stock and fixtures which had been covered by the policies being thus consumed by fire.
Doll could not and did not himself give to the company, within six days, notice of the loss. His father-in-law, Armstrong, who was the company’s agent at Griffin, sent the company, within the six days, the report in writing of the loss, usual under the policies. After leaving the hospital, and within the time fixed by the policies, Doll supplied the company with proofs of loss, setting forth a total loss by fire under the policies; the sound value of the stock and fixtures before any fire or tornado being fixed at over $16,000.
The court charged the jury, in effect, that, if there was fire in the merchandise and fixtures before the tornado caused the building or any substantial part of it to fall, the company would be liable to the same extent as if the insured property had been wholly destroyed by fire, and the tornado had not ■intervened. The verdict was for the full amount of the policies, and judgment was given accordingly.
We consider first the company’s contention that Doll’s failure to give the notice under the six-day clause of the policy barred his right to maintain the suit.. To this we cannot accede. The clause in no way concerns the indemnity itself, but only the procedure after loss under the policies has accrued. Whatever the office of the clause may be under usual conditions, it is hardly possible that its literal application to the extraordinary circumstances here appearing was within the intent of the parties.
The Supreme Court considered a question quite similar in principle in Germania Fire Ins. Co. v. Boykin, 12 Wall. 433, 20 L. Ed. 442. There the policies required that in ease of loss the insured render the insurers a statement of the origin of the fire, particular account of the loss, etc., to be signed and sworn to by the insured. He submitted his affidavit containing statements which, if true, would have invalidated the policies. For the insured it was contended he was insane when he made and submitted the affidavit, and thereupon the companies maintained that, if he was insane, the required proof was not supplied, and the action must fail for want of it. Of this contention the court said: “It is too repugnant to justice and humanity to merit serious consideration. There are two obvious answers to it. * * * Second, if he was so insane as to be incapable of making an intelligent statement, this would of itself excuse that condition of the policy.”
Other eases where eourts have held that impossibility of compliance will excuse performance of conditions appertaining to procedure after loss occurs under insurance contracts, are Woodmen Accident Ass’n v. Pratt, 62 Neb. 673, 87 N. W. 546, 55 L. R. A. 291, 89 Am. St. Eep. 777; Eeed v. Loyal Protective Ass’n, 154 Mich. 161, 117 N. W. 600; Stevens & Co. v. Frankfort Marine, etc., Co. (C. C. A.) 207 F. 757, 47 L. R. A. (N. S.) 1214.
But in our view the record discloses a further reason why the clause does not bar the action. From the testimony of the company’s local agent, Armstrong, it is fairly inferable that in this, as in all eases, it is the company’s local agent who, learning of the loss, undertakes compliance with the requirement of notice, by sending to the company, on blanks provided by the company for that purpose, the first information respecting the occurrence, and the desired details. Armstrong made such report to the company, not only of .this but of other cases where he had placed such policies and the insured property was burned on that occasion. He represented several companies, all of which had supplied him with such loss report blanks. Some of the blanks became lost in the storm, and he used for all the losses such as he had remaining. The conclusion that it was contemplated that the policy provision for this notice would, in practice, be complied with through this report of the agent, is helped by a printed clause on the report blank, which is:
“Instructions to Insured. — It is the duty of the insured to use his best endeavors to protect the property insured against loss or damage both during and after a fire. Follow the directions of the policy in this matter. Agents will so instruct insured, should such instruction be necessary.”
This is, in effect, a direction by the company to its agent to notify the insured to do something which, in the same sentence of the policy as that which prescribes the notice of loss, and in terms no less imperative, requires the insured to do the very things whereof the agent, by this clause, is directed to remind him. The fair inference is that the information of the fire will be communicated through the agent; but as to the care of the property after the fire the agent should remind the insured of his contractual duty, which manifestly the insured, rather than the agent, is ordinarily best able to perform.
It is contended for the company that the evidence wholly fails to show that the burning of the property insured commenced before the fall of the building, or any part of it, and that therefore its motion for a directed verdict should have been granted. Coneededly, if the insured property did not start to bum until after the building fell, the fallen building clause of the policies would bar recovery. It appears that, very shortly before the tornado which destroyed the building, there was a blast of wind which shattered the glass of the store front. The evidence showing fire in the store before this breaking of the glass is, to say the least, meager, and the company claims that such evidence is entirely wanting, and that the breaking of the glass was such a falling of part of the building as voided the policies, and relieved it from liability thereafter for any fire loss.
The glass in such a building is not an integral part of the structure itself, in that it holds or sustains any part of it, but is held by the building structure. It is an exceedingly fragile element, easily shattered by wind pressure or a comparatively slight blow, leaving the structure, as such, wholly intact. The breaking of windows is of such frequent occurrence, resulting from such a variety of causes, as to make it quite absurd to suppose the clause contemplates that every such breaking should be regarded as sueh a partial falling of the building as ipso facto to terminate the insurance. Had the broken glass been the extent of the storm’s toll, and had no fire occurred about that time, it would border on the fantastic to assume that either party would have considered the contract thereby terminated.
The company’s contention that the evidence fails to show fire in the store a,t any time before the building’s fall is not supported by the record. Two witnesses testified without reserve that, very shortly before the building fell, the counters next to the open stove door and the shelving back of the counters and the merchandise there and thereabout were buming.i One of them, Doll himself, said he was at the front when the glass was broken, and, turning around and starting back toward the stove, he saw fire as stated. Another witness says he saw it from the outside, and his evidence may even warrant the conclusion that this was before the glass was broken. There are some witnesses who saw the light, but could not say whether it was light from the open stove door or from fire in the merchandise. A number of witnesses testified to being in the store at the time, and that they saw no fire other than that in the stove, and smelled none. While their testimony coneededly throws much doubt on the correctness of the testimony of those who positively swore they did so see it, the question was for the jury. The court distinctly charged that, if the insured property was not on fire before the building fell, there can be no recovery on the policies. The jury’s finding of liability is a necessary finding that some of the insured property was afire before the building fell, and this we are not at liberty to disturb, even though a perusal of the record might indicate to us tiiat a contrary conclusion would have been easily sustainable.
We cannot say from the evidence that it is impossible or even improbable that the truth on this proposition is on the side of defendant in error. There was a large stove about the center of the store, near its south side, whose large southerly facing door had been opened some minutes before to cheek the strong coal fire in the stove.- The extraordinary atmospheric conditions might suddenly have drawn or blown fire from the stove toward the nearby merchandise and fixtures and very quickly ignited them; and while the burning coal would have been sufficient to have first ignited the fire after the fall of the building, it is not less possible that, if the merchandise were burning when the building fell, it continued to bum, causing the fire which coneededly destroyed the merchandise, which had fallen with the building. All this involved questions for the jury, by whose finding thereon, followed by the judgment of the court, we are bound. We cannot say the court erred in failing to hold, as a matter of law, that the evidence did not warrant the conclusion that fire in the merchandise and fixtures was in progress before the building fell.
It follows that the company is liable on the policies, at least to the extent that the insured merchandise and fixtures were damaged by fire up to the falling of the building, and the verdict further establishes that the fire, after the fall, was a continuation of the fire in progress before the building fell.
This brings us to the question whether, in any event, the company is liable for fire loss occurring after the building fell. The jury was charged that, if the fire which destroyed the insured property started before the building fell, the company was liable for the entire fire loss. The authorities upon the proposition in the main sustain the propriety of this charge. Davis v. Com. Fire Ins. Co., 158 Cal. 766, 112 P. 549, 32 L. R. A. (N. S.) 604; Wiig v. Girard F. & M. Ins. Co., 100 Neb. 271, 159 N. W. 416, L. R. A. 1917F, 1061; Rochester German Ins. Co. v. Peaslee-Gaulbert Co., 120 Ky. 752, 87 S. W. 1115, 27 Ky. Law Rep. 1155, 1 L. R. A. (N. S.) 364, 9 Ann. Cas. 324; s. c., 120 Ky. 752, 89 S. W. 3, 28 Ky. Law Rep. 130, 1 L. R. A. (N. S.) 364, 9 Ann. Cas. 324; Jones v. German Ins. Co., 110 Iowa, 75, 81 N. W. 188, 46 L. R. A. 860; May on Insurance (3d Ed.) § 401; 6 Cooley, Briefs on the Law of Insurance (Suppl.) p. 327, *p. 836; Joyce on Insurance (2d Ed.) § 1446. . -
We are not disposed to depart from the principle declared by these authorities, and under these we hold the liability of the company to extend to the entire loss resulting from the destruction by fire of the property insured.
But there is yet another serious question —one which goes to the extent of the recovery. The court charged the jury, in substance, that, if the fire started before the building fell, the plaintiff was entitled to recover the full amount of the policies, since the evidence shows all the insured property was totally destroyed by fire, and was worth more than the face of the policies. The court declined to instruct, as requested by defendant, that plaintiff could not recover for any loss to the insured property occasioned by the building’s fall.
It is plain from the evidence that, up to the time the building fell, whatever fire there was in the store was confined to merchandise, shelving, and counters on the south side, in the vicinity of the stove. It was in the shoes and overalls, and possibly some other lines, of this stock of general merchandise. It seems that the bulk of the stoek was on the north side of the store and in adjacent rooms, all of which went down with the building. It is manifest that all such as was not, up to that time, destroyed or damaged by fire, was very materially damaged in the fall of the store. It is too plain for argument that whatever fire there was then in the store to no extent contributed to its fall. The damage to the stock and fixtures by the fall of the store was from a cause wholly independent of the fire, and for any damage thus caused this insurer against fire loss only was not responsible.
If, for example, the stoek which went down with this brick building consisted of eroekery, glassware, eggs, and the like, it is highly probable that the value of such merchandise would entirely disappear with the fall; and if thereafter fire attacked what was left of it, no damage to such would be attributable to the fire, since it had then no value. Groceries, clothing, dry goods, tin ware, and most other merchandise, if plunged into the ruins of a two-story briek building containing it, would most likely be materially damaged thereby, and, if thereafter it was destroyed by fire, the recoverable loss under the policy of fire insurance would be the value of the property just before it was so destroyed.
A situation quite similar in principle was dealt with in Liverpool, London & Globe Ins. Co. v. McFadden (2 C. C. A.) 170 F. 179. The fire had burned for several days, and the question was whether the measure of insurance recovery on a large quantity of baled cotton was the market price at the time the fire began, or the somewhat larger price at the time the fire actually reached and destroyed the cotton in question. From the opinion we quote:
“The extent of the company’s liability, as there declared, is not the cash value at the time the property is exposed to the danger of loss by the outbreak of the fire, but the actual cash value at the time the loss occurs, which is necessarily to be referred, if material, to the time when, in point of fact, as nearly as can be ascertained, the fire reaches and consumes or damages it. It may be arrested before it gets there, or be put out with only trifling loss. It is what happens in this respect, and just as it happens, that controls. Possibly it might conduce to certainty to have the loss estimated as of the time when the fire starts. But there is nothing which compels this construction. * *
Applying here the principle of that case, it would follow that the measure of recovery as to the insured property which burned after the building fell, was its value at the time it burned, in the condition in which it then was. That there may be difficulty in fixing the value of the property at the various stages is apparent; but because oO the difficulty alone the insurer should not be penalized. From the condition here appearing it would seem not impossible to fairly approximate the value of the stock that went down into the débris — both the sound value and its value after this damage from the casualty not insured against. What stock there originally was is no doubt definitely known, and the salvage value of such stocks after the fall of the buildings in which they are contained is a matter of very wide experience with those versed in such things. It can only be said that in this case, as well as in others, the best evidence should bo adduced of which the ease is susceptible, and the trier of facts should make the best ‘possible approximation in determining such questions of fact. The recovery should not exceed the loss which was occasioned by fire alone — the only hazard against which the policies were written.
To the extent that the court charged the measure of recovery to be the full face of the policies, the province of the jury was invaded, and error intervened, and, likewise, in refusing to give the above-mentioned requested charge. But we are not disposed to reverse the judgment generally, and to order a retrial upon all the issues. The error extends only to the assessment of the damages, and for the purpose only of correcting this error the cause should be remanded.
The cause is remanded to the District Court, which is hereby directed to submit for retrial the question only of the amount of loss upon the insured property caused by fire alone, eliminating whatever damage was caused to any of such insured property by the fall of the building in which it was contained.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
songer_appel1_1_3
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
ROSCOE MOSS COMPANY, Creditor in the matter of: Fred William Walker, aka Fred W. Walker, F. W. Walker and as Fred Walker, Appellant, v. J. M. DUNCAN, Trustee in the matter of: Fred William Walker, aka Fred W. Walker, F. W. Walker and as Fred Walker, Appellee.
No. 19082.
United States Court of Appeals Ninth Circuit.
Sept. 14, 1964.
Richard W. Horton, Stewart, Horton & MeCune, Reno, Nev., Arguello, Gio-metti, McCarthy, San Francisco, Cal., for appellant.
Raymond Anixter, Shapro, Anixter & Aronson, Burlingame, Cal., for appellee.
Before HAMLEY and BROWNING, Circuit Judges, and TAYLOR, District Judge.
TAYLOR, District Judge.
This is an appeal from an Order of the United States District Court for the Northern District of California affirming the Order of the Referee in Bankruptcy in favor of the Appellee and against Appellant.
This Court has jurisdiction under Section 24 of the Bankruptcy Act (11 U.S.C. § 47).
According to the stipulated facts the Appellant (Mortgagee) filed a proof of secured claim with Appellee (trustee) asserting a claim for $10,994.31 to be secured by a chattel mortgage upon certain well drilling equipment which mortgage was recorded in Monterey County, California ; that the well drilling equipment was removed from Monterey County into Santa Cruz County, California, where it remained more than thirty days prior to the filing of the petition in bankruptcy; that the mortgage was never recorded in Santa Cruz County and there are creditors of the bankrupt who became such while the mortgage was unrecorded in said county; that some but not all of the creditors of the bankrupt had knowledge of the recordation of the mortgage in Monterey County; and that the mortgagor was a resident of the State of California at the time the mortgage was made.
Based on these facts the Referee and the District Court held that appellant’s mortgage was void as against the trustee in bankruptcy and that appellant’s claim against the estate of the bankrupt was unsecured.
Appellant specifies that it was error for the District Court to affirm the Order of the Referee in that: “a. The lien of the trustee in bankruptcy is inferior to the lien of the chattel mortgage of appellant and appellant’s claim in bankruptcy should be allowed as a secured claim.”
The question here is whether under the agreed facts of this case, the chattel mortgage is valid or invalid as against the trustee in bankruptcy.
The resolution of the issue depends primarily on the interpretation of Sections 2957 and 2965 of the California Civil Code. However, in the first instance we must look to the Bankruptcy Act to determine the rights and power of a trustee in regard to the property of a bankrupt.
Section 70, sub. c, of the Bankruptcy Act (11 U.S.C.A. § 110, sub. c) gives-the trustee all of the rights of a lien creditor upon property in which the bankrupt has an interest or as to which the bankrupt has an interest or as to-which the bankrupt may be the ostensible-owner.
Under Section 70, sub. e, of the Act (11 U.S.C.A. § 110, sub. e) a trustee “is empowered to act in a representative capacity in behalf of the actual creditors of the bankrupt. * * * He is given the powers they would have had in the event of non-bankruptcy, and thus has the same right they would have had to attack a lien on the bankrupt’s property. * * * If one creditor could have prevailed against the holder of the security, the trustee in bankruptcy can avoid the security in its entirety. Thus, the rights of a single creditor, however minor his claim, redound to the benefit of all creditors in bankruptcy.” Mal-lagh v. Bank of America, 300 F.2d 679 (9th Cir. 1962).
Section 2957 of the California Code provides:
“A mortgage of personal property * * * is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless
* * * * -x- *
“4. The mortgage, if of personal property other than crops growing or to be grown or animate personal property, is recorded in the office of the recorder of each of the counties where the property mortgaged is located and where the mortgagor resides at the time the mortgage is executed, provided that in case the mortgagor is a nonresident of this .State no recordation where the mortgagor resides is required, and, in case the property mortgaged is thereafter removed to another county of this State, either the mortgage is recorded in that county or there is or has been filed a statement of recordation as prescribed in Section 2965; * * *”
It is provided in Section 2965 that:
“When personal property mortgaged (other than animate personal property mortgaged by a resident of this State, and motor vehicles and other vehicles defined in and the mortgaging of which are regulated by the California Vehicle Act) is removed from the county in which it is situated, constructive notice of the mortgage imparted by recordation shall not be affected thereby for 30 days after such removal; but, after the expiration of such 30 days, said recordation shall not impart constructive notice while said property remains removed from the county:
“1. Until the mortgagee causes the mortgage to be recorded in the county to which the property has been removed; or
“2. Unless the mortgagee causes or has caused a statement of recordation to be filed; or “3. Until the mortgagee takes possession of the property as prescribed in the next section.”
The District Court held that according to the provisions of Sections 2957 and 2965 of the California Civil Code a creditor without notice prevails against a prior chattel mortgagee who has not recorded his mortgage when the property is removed to another county. We agree.
In Mallagh v. Bank of America Nat. Trust and Sav. Assoc., supra, this Court considered a similar situation in regard to rights of a trustee as to mortgaged property when it was removed by a mortgagor to a second county and there was a failure to re-record the mortgage in the new county or to file a statement with the Secretary of State of California as required by Section 2965 of the California Code. Thex-e it was definitely held that “[t]he chattel mortgage of the Bank became invalid 30 days after removal of the mortgaged property to Kern County, and the failure of the Bank to x'e-record its mortgage in Kern County or to file the required statement with the Secretary of the State of California.” Id. at 682.
In the case hex-e the appellant failed to re-record its mortgage in Santa Cruz County or file the required statement with the Secretary of the State of California.
In accord with the holding in the Mallagh case, cited and approved in Republic Supply Company of California v. MacMullen, 328 F.2d 785 (9th Cir., 1964), appellant’s mortgage became invalid 30 days after the removal of the mortgaged property from Monterey County to Santa Cruz Couxxty, Califox-nia,
Appellant bottoms his contention on an interpretation of Section 2957 which to us does not appear to be reasonable or realistic. He argues that in a case of a resident mortgagox-, when the mortgage has been recorded in the county where the property is located and the county where the mortgagor resides, the property can be moved into another county and remain there for any length of time without any re-recording as required by Section 2965. We do not agree.
It seems clear to us that Section 2957 applies to re-recording of a mortgage in the case of a resident as well as a nonresident. In either case the mortgage is invalid against creditors unless there is a compliance with Section 2965.
Since Section 70, sub. e(l) of the Bankruptcy Act gives the trustee the powers which any of the creditors might have had, in the absence of bankruptcy; and Section 70, sub. c, gives the trustee the status of an imaginary ci-editor holding a lien on the bankrupt’s property by legal or equitable proceedings at the time of bankruptcy (Republic Supply Company v. MacMullen, supra) and since appellant’s mortgage was invalid as against creditors, it follows that the mortgage was invalid as to the Trustee in Bankruptcy.
The Order of the District Court affirming the Order of the Referee in Bankruptcy is affirmed.
. Section 70, sub. c, of the Bankruptcy Act (11 U.S.C.A. § 110, sub. c.) provides:
“(c) The trustee may have the benefit of all defenses available to the bankrupt as against third persons, including statutes of limitation, statutes of frauds, usury, and other personal defenses: and a waiver of any such defense by the bankrupt after bankruptcy shall not bind the trustee. The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”
. Section 70, sub. e, of the Bankruptcy Act (11 U.S.C.A. § 110, sub. e) provides:
“(e) (1) A transfer made or suffered or obligation incurred by a debtor adjudged a bankrupt under this title which, under any Federal or State law applicable thereto, is fraudulent as against or voidable for any other reason by any creditor of the debtor, having a claim provable under this title, shall be null and void as against the trustee of such debtor.
“(2) All property of the debtor affected by any such transfer shall be and remain a part of his assets and estate, discharged and released from ■such transfer and shall pass to, and ■every such transfer or obligation shall be avoided by, the trustee for the benefit of the estate: Provided, however, 'That the court may on due notice order such transfer or obligation to be preserved for the benefit of the estate •and in such event the trustee shall ■succeed to and may enforce the rights of sucli transferee or obligee. The trustee shall reclaim and recover such property or collect its value from and avoid such transfer or obligation against whoever may hold or have received it, except a person as to whom the transfer or obligation specified in paragraph (1) of this subdivision is valid under applicable Federal or State laws.
“(3) For the purpose of such recovery or of the avoidance of such transfer or obligation, where plenary proceedings are necesary, any State court which would have had jurisdiction if bankruptcy had not intervened and any court of bankruptcy shall have concurrent jurisdiction.”
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_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Eugene Kevin WELLS, Plaintiff-Appellant, v. Edward MURRAY, Director, Virginia Department of Corrections, Defendant-Appellee.
No. 86-7683.
United States Court of Appeals, Fourth Circuit.
Argued March 2, 1987.
Decided Oct. 13, 1987.
Deborah C. Wyatt (Gordon & Wyatt, Jeffrey M. Gleason, Martin & Martin, Charlottesville, Va., on brief), for plaintiff-appellant.
Frank Snead Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Virginia, Richmond, Va., on brief), for defendant-appellee.
Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.
ERVIN, Circuit Judge.
This is an appeal from the dismissal of Eugene Kevin Wells’s federal habeas corpus petition. Wells shot and killed a teenager who had vandalized his car. At trial in Virginia state court, there was conflicting evidence as to whether this shooting was accidental or not. The jury convicted Wells of first degree murder and use of a firearm in the commission of a felony. After his appeal to the Virginia Supreme Court was dismissed, Wells petitioned for habeas corpus relief in federal district court. His petition was denied.
On appeal, Wells claims several procedural errors of a constitutional magnitude. He attacks the trial court’s refusal to allow defense counsel to ask certain questions during voir dire, the trial court’s exclusion of expert testimony concerning the propensity of his weapon for self-firing, and the propriety of jury instructions on self-defense. In our view, none of these alleged errors warrant reversal. Accordingly, we affirm the denial of Wells’s habeas corpus petition.
I.
At the time of the shooting incident, Wells lived in a remote area of Culpeper County, Virginia. On the weekend of September 3, 1983, a group of teenagers went camping near Wells’s home. Wells discovered some of the teenagers vandalizing his car. One of the youths, eighteen year-old Joe Maybury, had smashed a rear window of the car. When Wells confronted the teenagers, they fled. Wells then returned to his home and considered the situation while drinking several beers.
Later that afternoon, Wells went to a lake where the teenagers were swimming. He took his shotgun with him. As he came upon the youths, Wells fired a warning shot into the air. He recocked his weapon and advanced upon the boys. There was conflicting testimony at trial as to the ensuing events. According to the prosecution’s witnesses, Wells pointed the shotgun at Maybury and prodded him with it; May-bury was shot when he tried to push the shotgun away. Wells testified that May-bury attempted to grab the shotgun, that there was a struggle over possession of the weapon, and that the weapon accidentally discharged during the struggle. Maybury was shot in the abdomen. He subsequently died as a result of his gunshot wounds.
Wells was tried before a jury in the Circuit Court of Culpeper County in December, 1983. He was convicted of first degree murder and use of a firearm in the commission of a felony. Wells was sentenced to life imprisonment for the murder charge and a term of two years for the firearms charge. He unsuccessfully appealed to the Virginia Supreme Court. He then petitioned for habeas corpus relief in federal district court, but his petition was denied. Wells now appeals the denial of his federal habeas corpus petition.
II.
A. Voir Dire
Wells first claims that he was denied a fair trial, in violation of the sixth amendment and the due process clause of the fourteenth amendment of the United States Constitution, because the trial judge failed to inquire adequately into juror prejudice on voir dire. Wells’s claim arises from the publicity surrounding an earlier Culpeper County trial.
Less than a week before Wells’s trial, several of the jurors who were in his jury pool sat on another criminal case involving embezzlement charges, Commonwealth v. Richards, (Criminal Court File No. 2516, Nov. 30, 1983). In Richards, the jury returned a verdict of not guilty. The presiding judge, who was not the judge in Wells’s trial, criticized the jurors upon hearing their verdict. He stated that, by their verdict, the jurors were “telling the ’citizens and people of Culpeper County that it’s all right for an employee to [embezzle].” He called their verdict a “gross miscarriage of justice.” The judge asserted that he would have found the defendant guilty in about two minutes. He then discharged the jurors, admonishing them to return by December 6, 1983, the opening day of Wells’s trial. The judge's criticism attracted the attention of a local newspaper, which printed a front-page story on the incident.
At the start of Wells’s trial, defense counsel proposed several voir dire questions based on the jurors’ prior participation in the Richards case. Counsel wished to inquire whether the jurors were more inclined to convict Wells after being chastised for their leniency by the judge in Richards. The trial judge did not permit those questions to be asked. Instead, the judge asked more general questions, such as whether any of the prospective jurors had a personal interest in the outcome of Wells’s case, and whether any of them had prior knowledge of Wells’s case. When the prospective jurors indicated such prior knowledge, the judge questioned them individually, asking them what they had learned and how their knowledge would affect their views of the case. All of the veniremen questioned stated that their knowledge of the case would not influence their decision.
Wells claims that these questions were insufficient, and that the trial court committed reversible error by failing to inquire into the effect of the public castigation which the Richards jurors experienced. His claim raises the much-litigated issue of pretrial publicity. It is firmly established that a defendant such as Wells is entitled to a fair trial, free from publicity that prejudices jurors against the defendant at its outset. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (“the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors”); see also United States v. Sawyers, 423 F.2d 1335, 1344 (4th Cir.1970). Jurors, however, are presumed to be impartial, absent indications to the contrary. The existence of a juror’s preconceived notion as to the guilt of the accused will not by itself destroy the presumption of impartiality. See Irvin, 366 U.S. at 723, 81 S.Ct. at 1642-43. Only in extreme circumstances may prejudice to a defendant’s right to a fair trial be presumed from the existence of pretrial publicity itself. See United States v. Haldeman, 559 F.2d 31, 60, (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).
In other, less extreme situations, when external events such as pretrial publicity raise a strong possibility of jury bias, the court has a duty to determine whether the accused may have a fair trial. Inquiry into jury bias typically entails an evaluation of “the pre-trial publicity complained of and its impact, if any, on the jury, as developed through adequate voir dire examination of the jurors____” Wansley v. Slayton, 487 F.2d 90, 92-93 (4th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974).
It is the defendant’s responsibility to demonstrate a strong possibility of jury bias. He must show, through adequate voir dire, that he was denied his right to a fair trial before a panel of unbiased jurors. See Haldeman, 559 F.2d at 60. The assertion that voir dire was inadequate, by itself, does not prove that the jury was not impartial. As noted in Wansley, “ ‘it is not sufficient to simply allege adverse publicity without a showing that the jurors were biased thereby.’ ” Id. at 92 n. 8 (quoting Ignacio v. Guam, 413 F.2d 513, 518 (9th Cir.1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970)).
In this case, Wells has not shown that he was, in all likelihood, denied his right to a fair trial. The publicity which Wells complains of — publicity surrounding the verdict in the Richards case — simply does not raise a strong possibility of jury bias. The trial court, then, acted within its discretion in refusing, during voir dire, to inquire into the effects of that publicity on the Richards jurors.
We reach this conclusion after much thought and consideration. A comparison of this case with leading decisions concerning the effects of pretrial publicity on the extent of voir dire is instructive. Wells urges us to analogize his case to the Supreme Court’s decision in Irvin. The analogy is not an appropriate one. In Irvin, the defendant was indicted on murder charges in one Indiana county, where press releases stated that the defendant had confessed to the murder. The defendant was granted a change of venue to a nearby county that had also received the press releases. He was denied a second change of venue to a more remote county, and was subsequently convicted. The Supreme Court held that the defendant was denied his due process rights under the fourteenth amendment because his trial in state court was not impartial.
The situation in Irvin must be distinguished from the instant situation. In Irvin, the unfavorable publicity concerned the defendant himself, and it was disseminated throughout the community in which he was tried. By contrast, in this case, the publicity of which Wells complains did not concern Wells and the shooting incident. Instead, the media reported the castigation of several of Wells’s veniremen by a different judge, in a different ease, involving different issues. Wells asserts that this castigation made the Richards jurors reluctant to acquit a defendant in a later case. His assertion is too weak to warrant a reversal, especially in light of the Irvin Court’s cautionary note:
It is not required ... that the jurors be totally ignorant of the facts and issues involved____ To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
366 U.S. at 722-23, 81 S.Ct. at 1642-43.
Like Irvin, later Supreme Court decisions have stressed that the kind of adverse publicity that warrants reversal of a criminal conviction is publicity that concerns the defendant himself. See, e.g., Sheppard v. Maxwell, 384 U.S. at 363, 86 S.Ct. at 1522 (reversal of murder conviction required when defendant’s alleged crime was subject of heavy media coverage before and during the trial, and trial judge failed to shield defendant from publicity). Additionally, every case we have examined that discusses the trial court’s duty, during voir dire, to inquire into the effects of pretrial publicity, focuses on publicity about the defendant. See, e.g., Jordan v. Lippman, 763 F.2d at 1265-67 (trial court’s failure to conduct voir dire on inflammatory publicity in murder trial of black inmate violated defendant’s constitutional rights); United States v. Davis, 583 F.2d 190, 196 (5th Cir.1978) (inadequate voir dire required reversal of defendant’s conviction where defendant participated in widely-publicized jailbreak).
This distinction between publicity about the defendant and other types of publicity is strengthened by our decision in Wansley v. Slayton. In Wansley, we held that the denial of a defendant’s motion for a change of venue based upon adverse pretrial publicity was not a violation of due process. Significantly, we noted that:
The most strongly pressed complaint of the petitioner on publicity ... deals with comments published from time to time, not about the petitioner, but about one of his counsel---- It is doubtful, however, that any pre-trial reference in the press to an accused’s attorney in the absence of any prejudicial or unfair comment on the accused himself or the merits of his offense, can justify a finding that the accused’s right to a fair trial has been so prejudiced that due process is violated.
Wansley, 487 F.2d at 95 (emphasis in the original).
The distinction we draw between unfavorable pretrial publicity about a defendant, which often warrants a voir dire inquiry, and publicity about other matters, which may not warrant such an inquiry, seems to us a reasonable one. The trial court’s duty to inquire into the effects of any adverse publicity on jurors’ views is not absolute; this duty is prompted only by a “constitutionally significant likelihood that, absent questioning[,] ... jurors would not be indifferent____” Turner, 106 S.Ct. at 1686. As Irvin and its progeny indicate, the likelihood of juror bias is strongest when the adverse publicity concerns the defendant himself and creates a hostile atmosphere in the community that permeates the jury box. The possibility of juror bias is much more remote when the publicity neither affects the defendant, nor gives the jury any concrete reason to doubt the defendant’s innocence. This was the case in Wansley, in which the publicity of which the defendant complained involved defense counsel, rather than the defendant. It is also the case here, because the publicity at issue concerned the jurors’ participation in an earlier trial, rather than the defendant.
Our conclusion is also supported by decisions discussing the effect that a trial judge’s remarks about a jury’s verdict have on the jurors. Generally, reviewing courts have not treated such remarks harshly; a trial judge’s comments do not warrant reversal unless they are so prejudicial as to constitute the denial of a fair trial. See United States v. Preston, 608 F.2d 626, 636 (5th Cir.1979). Courts have applied this principle to a judge’s remarks about a verdict, as well as a judge’s comments during trial. See United States v. Benson, 495 F.2d 475 (5th Cir.), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 310 (1974); United States v. Salazar, 480 F.2d 144 (5th Cir.1973); Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969).
Salazar is especially instructive, since it involves a factual situation similar to our own. In Salazar, the defendant was prosecuted for possession of marijuana with the intent to distribute. His venire included twelve individuals who had sat on a similar criminal case involving a different defendant. In that earlier case, the jury had acquitted the defendant. The trial judge, like the Richards judge, had expressed his disagreement with the jury’s decision. Significantly, the Salazar court found that the judge’s public disapproval of the verdict in the earlier case was not dispositive: “The mere fact that a judge informs a jury, after the verdict, that he probably would have reached a different conclusion does not disqualify that jury for further service.” Salazar, 480 F.2d at 145.
The Benson court relied on this language in finding no prejudice to the defendant, although his venire included several jurors who had been praised by the same judge for returning a guilty verdict in an earlier case. See Benson, 495 F.2d at 482. The government had argued that defense counsel had made several procedural mistakes, such as failing to exercise any peremptory challenges, which should have precluded defendant’s claim of prejudice. The court stressed that, regardless of whether or not these alleged mistakes occurred, the defendant was not denied his right to an impartial jury. The court relied upon Salazar’s ruling that the judge’s comments disapproving the jury’s verdict did not bar jurors from further service; it extended that ruling to the judge’s comments approving the jury’s verdict. Benson suggests that the principle articulated in Salazar may be applied to a number of situations in which the trial court comments upon the jury’s verdict, including the situation presented in Wells’s case.
Chavez-Martinez, which was decided pri- or to Salazar and Benson, also found no prejudice resulting from a judge’s post-verdict comments. In that case, the defendant was convicted of drug smuggling charges. The defendant claimed that the trial judge erred in not asking potential jurors, on voir dire, whether they would be influenced by the judge’s criticism of a jury’s verdict in another case. The court of appeals held that the defendant was not prejudiced by the trial judge’s omission. The court found that the trial judge’s questions to the jury had eliminated any possible prejudice to the defendant.
The few decisions which adopt a more restrictive tone, see, e.g., United States v. Bland, 697 F.2d 262 (8th Cir.1983); Everitt v. United States, 281 F.2d 429 (5th Cir. 1960), and indicate that the trial judge’s post-verdict comments may hamper jurors from serving on further juries, are distinguishable from Wells’s case. In Bland, the defendant was convicted in federal district court for violations of gun control laws. After the jury returned its verdict, the trial judge remarked that criminal cases tried in federal court are generally more thoroughly investigated than those tried in state court. The judge also observed that successful defenses are less frequent in federal court than in state court and that most federal defendants are guilty of the crimes with which they are charged. The court of appeals held that the trial judge’s post-verdict remarks were not prejudicial to the defendant. Yet, the court also observed that the judge’s remarks would be prejudicial to other criminal defendants tried in federal court, because several of the jurors were likely to sit on additional federal criminal cases. See Bland, 697 F.2d at 266.
The general nature of the trial court’s statement in Bland distinguishes that case from the present situation. The observations made by the Bland judge about the differences between federal and state trials, and the culpability of most federal criminal defendants, had broad applicability. These statements could have influenced the jurors’ decisions in future criminal cases they might sit on. It was the broad nature of the trial judge’s statements which the Bland court focused upon in indicating that those statements were prejudicial. By contrast, in the present case, the statements by the Richards judge of which Wells complains were narrowly tailored to fit the case at hand. The trial judge in Richards simply criticized the jurors for acquitting the defendant of embezzlement charges. His remarks, unlike the remarks of the trial judge in Bland, may not have influenced the jurors in future cases. We cannot say that the statements of the judge in Richards prejudiced the jurors, who considered a wholly different set of facts and charges in Wells’s case.
Like Bland, Everitt is distinguishable from Wells’s case. The Everitt court examined the impact on the defendant, Glenn, of an earlier trial involving his codefendant, Everitt. The court held that it was reversible error to allow several jurors to sit on Glenn’s jury after they had returned a guilty verdict in Everitt’s case and had been praised by the trial judge for their speedy decision.
Clearly, the two cases on which the jurors sat were more closely related in Everitt than in the present situation. In Everitt, the two cases involved codefendants; the jurors were likely to have received unfavorable information about Glenn when they sat on Everitt’s jury. The trial judge was the same in the two cases; the jurors might have felt compelled to present the judge with another guilty verdict after he had praised them for their decision in Everitt’s case. Neither of these considerations applies in the present situation. Wells’s case was unconnected to the Richards case, and the trial judge in Wells’s case was not the same judge who presided over the Richards trial.
We conclude that the trial judge did not commit reversible error in failing to question the prospective jurors about the impact which the Richards case had on them. We hasten to add, however, that we do not condone the behavior of the trial judge in Wells’s case. The better practice would have been for the trial judge to prevent the Richards jurors from sitting in Wells’s trial. The judge could have easily discovered which of the veniremen sat on the Richards jury, and removed them from the jury selection process. In this manner, the judge would have forestalled the complaint that Wells now makes. Yet, because Wells’s complaint raises no substantial likelihood of prejudice, the trial judge’s actions do not warrant a reversal.
B. Refusal to Admit Evidence that the Gun Fired Accidentally
Wells’s primary theory of defense at trial was that the gun which killed Maybury discharged accidentally during the struggle between Wells and Maybury. A state expert examined the gun and determined that it could be made to fire without pulling the trigger. Wells sought to introduce evidence to that effect at trial, and the judge held an evidentiary hearing after excusing the jury. In the course of the evidentiary hearing, the expert testified that he had caused the gun to fire by hitting it with a mallet. The expert also testified that the gun could have fired accidentally during a struggle, but only if it was struck against a solid object. The court refused to admit the expert testimony that the gun would discharge if hit with a mallet or struck with a solid object, basing its ruling on the fact that there was no evidence that the gun had received such a blow during the struggle.
Evaluation of the admissibility of evidence is normally the province of the trial judge. See Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706 (1972); Savage v. Nute, 180 Va. 394, 23 S.E.2d 133, 137 (1942). However, exclusion of evidence so significant that the defendant is denied due process constitutes reversible error. See, e.g., United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (prosecution’s failure to disclose exculpatory evidence); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right to confront witnesses). At a minimum, for the exclusion of evidence to constitute a denial of due process, the defendant must show that the excluded evidence would have been material to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).
Wells makes no such showing. He asserted during oral argument that the failure to allow the introduction of the expert testimony adversely affected the jury’s perception of his credibility, since he testified that the gun had discharged accidentally. That argument is not persuasive. Wells would not have appeared any more credible in light of evidence that the gun could, in theory, discharge accidentally. The testimony which he sought to introduce would have shown that the gun could discharge accidentally only in circumstances other than those which he testified existed, i.e., upon a blow from a solid object.
C. Jury Instructions
Wells claims that the trial judge erred in instructing the jury on self-defense. Wells requested a jury instruction on pure self-defense, which the judge declined to give. Instead, the judge gave an instruction pertaining to self-defense after withdrawal from aggression. On appeal, Wells attacks both the trial judge’s failure to give his instruction and the propriety of the instruction that the judge did give.
Wells’ contention that the trial judge should have instructed the jury on pure self-defense can be quickly answered. A defendant is only entitled to a charge for which there is a foundation in the evidence. See United States v. Parker, 742 F.2d 127, 129 (4th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 575, 83 L.Ed.2d 514 (1984); 2 C. Wright, Federal Practice & Procedure § 485, at 710 (1982). It was simply not open to Wells to claim pure self-defense when he had initiated the altercation by approaching the unarmed victim and pointing a loaded shotgun at him.
Wells’s second claim is that the self-defense instruction which was tendered — as to withdrawal after aggression — was misleading and confusing. We reject Wells’s claim that the charge might have led the jury to conclude that self-defense was not a defense available to him. The withdrawal instruction read as follows:
The court further instructs the jury that where the plea of self defense is relied upon in a trial for murder, the law is that a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty. If you believe that the defendant was with some fault in provoking or bringing on the scuffle, and if you further believe that when attacked he retreated as far as he could safely, as he safely could under the circumstances in a good faith attempt to abandon the fight and made known his desire for peace by word or act and that he reasonably feared under the circumstances as they appeared to him that he was in danger of being killed or was, or he was in danger of great bodily harm, then the killing was in self defense and you shall find the defendant not guilty.
In reviewing this jury instruction, we must read the instruction as a whole. See Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Gore v. Leeke, 605 F.2d 741, 742-43 (4th Cir.1979), cert. denied, 444 U.S. 1087, 100 S.Ct. 1048, 62 L.Ed.2d 774 (1980). Surely, the jury would not have thought that the first sentence of the charge (“a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty”) mooted the effect of the following sentences which addressed self-defense after aggression and withdrawal.
Apart from the merits of the claim that the instruction was confusing, the government argues that Wells cannot now raise the issue, because he failed to enter a contemporaneous objection at trial. A federal habeas petitioner who has failed to comply with the contemporaneous objection rule at trial must show cause for the procedural default and some resulting prejudice in order to obtain review of his constitutional claim. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2678, 91 L.Ed.2d 397 (1986) (Brennan, J., dissenting) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Wells can show neither cause nor prejudice. Thus, his claim of prejudice from the misleading jury instruction must fail for the additional reason of procedural default.
In conclusion, we uphold the decision of the district court denying Wells’s habeas corpus petition. We find no merit in Wells’s attacks on the exclusion of expert testimony and the jury instruction on self defense. The voir dire issue is more difficult to. resolve. We are, however, unwilling to upset the trial court’s refusal to question the jurors about the Richards case, when Wells has not shown that the court’s action created a substantial likelihood of prejudice.
The judgment of the district court denying the petition for habeas corpus is
AFFIRMED.
. See Hoffman, "Judge Raps Jury for Setting Richards Free,” Culpeper Star Exponent, Dec. 1, 1983, at 1-2, cols. 1-3.
. Such affirmations are not universal guarantees of prospective jurors’ impartiality. See, e.g. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975): "In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question.” The veniremen’s avowals of impartiality, however, are most suspect where the jury is comprised of individuals from a community deeply hostile to the accused. See id.
The situation described in Murphy is not present in this case. Wells does not claim that such a hostile atmosphere existed in Culpeper County. In Wells’s case, we think that the trial judge’s questions concerning prior knowledge of the shooting incident, and the veniremen’s responses, are factors in determining the adequacy of voir dire. See) e.g., United States v. Gullion, 575 F.2d 26, 30-31 (1st Cir.1978) (when trial judge polled veniremen for bias resulting from pretrial publicity, conduct of voir dire did not give rise to a sixth amendment violation).
. The Haldeman court ruled that the extensive news coverage surrounding the Watergate affair, standing alone, did not raise a presumption of prejudice to the defendants' constitutional rights. The court stressed that cases creating such a presumption were rare; the Supreme Court had found only one instance where this presumption applied. See Rideau v. Louisiana 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Haldeman, 559 F.2d at 60-61.
In Rideau, the defendant’s confession to bank robbery, kidnapping, and murder was filmed and subsequently televised to tens of thousands of people in Calcasieu Parish, which had a total population of only 150,000. The court held that this publicity, which was tantamount to Rideau’s confession to a large segment of the community, prejudiced his right to a fair trial.
Wells's case is clearly distinguishable from the Rideau situation. In contrast to Rideau, Wells strenuously argues his innocence, maintaining that Maybury’s shooting was accidental. Moreover, as developed further in the text of this opinion, Wells does not even complain of publicity which involved him, but only of publicity involving several of the jurors.
. This strong possibility of jury bias has been characterized as a “reasonable likelihood,” Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), a "constitutionally significant likelihood," Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1686, 90 L.Ed.2d 27 (1986), or a "significant possibility," Jordan v. Lippman, 763 F.2d 1265, 1267 (11th Cir.1985).
. In Ignacio, defense counsel failed to question the veniremen about the effect of the alleged pretrial publicity, although the trial judge gave counsel ample opportunity to do so. Despite the trial judge’s less compromising position in the present case, we think the principle articulated in Ignacio is applicable since Wells’s claim of bias is quite attenuated.
. Wells also asks us to draw a parallel between his case and the Supreme Court’s decisions stressing the necessity of an adequate voir dire when racial prejudice is a factor. In his brief, Wells relies upon a number of decisions in which the Court considered a trial court’s refusal to ask prospective jurors about their racial biases upon the request of a black defendant. See Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).
In Ham, the Court held that the inquiry into racial prejudice was of "constitutional stature.” Ham, 409 U.S. at 528, 93 S.Ct. at 851. Yet, subsequent decisions limited the scope of Ham. For instance, in Ristaino, the Court cautioned that “[b]y its terms Ham did not announce a requirement of universal applicability. Rather, it reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be [indifferent]____" Ristaino, 424 U.S. at 596, 96 S.Ct. at 1021.
More importantly, we think that the cases treating racial bias are not applicable to the present situation. Those cases are premised on the notion that racial bias may pose a constitutionally significant threat to the jurors’ impartiality. Such a powerful threat is absent in Wells’s case. Indeed, the Ham decision itself makes a distinction between inquiries into racial prejudice and other forms of prejudice. For example, the Court held that the trial court’s refusal to question prospective jurors about their prejudices against bearded men, when the defendant was bearded, did not amount to a constitutional violation. See Ham, 409 U.S. at 528, 93 S.Ct. at 851.
. Our decisions in a related field also support the distinction between publicity unfavorable to a defendant and other types of publicity. See Donovan v. Davis, 558 F.2d 201 (4th Cir.1977); Wall v. Superintendent, Virginia State Penitentiary, 553 F.2d 359 (4th Cir.1977). In both of these cases, we found that the defendant was denied his right to a fair trial because several of the jurors had previously sat on a jury which had received unfavorable information about the defendant. We stressed that it was the receipt of information about the defendant himself which potentially prejudiced the jurors and denied the defendant the right to a fair trial. See Donovan, 558 F.2d at 204.
. The expert also stated that he had performed a “push-puH" test, reenacting with defense counsel the kind of struggle Wells testified had taken place. The gun did not discharge during the push-pull test. In the course of the hearing the expert unsuccessfully attempted to make the gun fire by hitting it painfully hard with his hand.
. The instruction that Wells requested read:
If you believe that the defendant was without fault in provoking or bringing on the scuffle and if you further believe that the defendant reasonably feared, under the circumstances as they appeared to him, and he was in danger of being killed or that he was in danger of great bodily harm, then the killing was in self-defense and you shall find the defendant not guilty.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
ESTATE OF Nelson A. ROCKEFELLER, Deceased, Laurance S. Rockefeller, J. Richardson Dilworth and Donal S. O’Brien, Jr., Executors and Margaretta F. Rockefeller, Appellants. v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 1041, Docket 84-4182.
United States Court of Appeals, Second Circuit.
Argued April 22, 1985.
Decided May 24, 1985.
William E. Jackson, New York City (Stuart E. Keebler, Joseph M. Persinger, Milbank, Tweed, Hadley & McCloy, New York City), for appellants.
Glenn L. Archer, Jr., Asst. Atty. Gen., Washington, D.C. (Michael L. Paup, Richard Farber, Bruce R. Ellisen, Attys., Tax Div., Dept, of Justice, Washington, D.C.), for appellee.
Before FEINBERG, Chief Judge, and FRIENDLY and NEWMAN, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal by the Estate of Nelson A. Rockefeller and his widow from a decision of the Tax Court, 83 T.C. 368 (1984), Featherston, J., presents a new variation on the old theme of what constitutes “ordinary and necessary expenses paid or incurred ... in carrying on any trade or business,” I.R.C. § 162(a), which are deductible in determining net income. Appellants contended that expenses incurred by Mr. Rockefeller in connection with the confirmation by the Senate and the House of Representatives, pursuant to the Twenty-Fifth Amendment, of his nomination to be Vice President of the United States were such expenses. The Commissioner of Internal Revenue denied this, the Tax Court agreed, and this appeal followed. We affirm.
The case arises as follows: Mr. Rockefeller incurred expenses of $550,159.78 in connection with the confirmation hearings in 1974, primarily for legal and other professional services. The Commissioner does not contend that the expenses were excessive or unreasonable in relation to the services rendered. In their joint income tax return for 1974, which showed a gross income of $4,479,437, Mr. and Mrs. Rockefeller claimed a deduction of $63,275 — an amount of these expenses equal to his salary as Vice President during the year. When the Commissioner of Internal Revenue disallowed this deduction, Mr. Rockefeller’s estate and Mrs. Rockefeller petitioned for review by the Tax Court and asserted that the entire amount of $550,-159.78 was deductible as expenses of the trade or business of “performing the functions of public office.”
The case was submitted on a rather meagre stipulation of facts which cited only Mr. Rockefeller’s tenure as Governor of New York State between January 1959 and December 1973, when he resigned to devote his full time to the Commission on Critical Choices for Americans (1973-74) and the National Commission on Water Quality (1973-74), as showing the trade or business in which Mr. Rockefeller had engaged. However, copies of the hearings before and the reports of the Senate and House Committees on his nomination as Vice President were attached to the stipulation, and the Tax Court’s opinion lists other positions held by Mr. Rockefeller referred to in these hearings, as follows: Coordinator of Inter-American Affairs (1940-44), Assistant Secretary of State for American Republic Affairs (1944-45), Chairman of the Presidential Advisory Board on International Development (1950-51), Undersecretary of Health, Education and Welfare (1953-54), and Special Assistant to the President for International Affairs (1954-55). 83 T.C. at 374-75.
Discussion
Decision turns on the interpretation of the familiar provision of I.R.C. § 162(a), going back to the Revenue Act of 1918, which allows as a deduction
all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.
Also relevant is I.R.C. § 7701(a)(26), adopted as § 48(d) of the Revenue Act of 1934, 48 Stat. 680, 696, ch. 277, which says:
The term ‘trade or business’ includes the performance of the functions of a public office.
Almost all discussions of the problem here at issue begin, and many of them end, with McDonald v. C.I.R., 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed.2d 68 (1944), although in fact it sheds a most uncertain light. McDonald had been appointed to serve an unexpired term as judge on a Pennsylvania court, carrying an annual salary of $12,000, with the understanding that he would be a contestant in the ensuing primary and general elections for a full term of ten years. To obtain the support of his party organization, he was forced to pay an “assessment” of $8,000, which was to be used for the support of the entire ticket; he spent an additional $5,017.27 for expenses of his own campaign. The Commissioner disallowed the deduction of both amounts. The Tax Court affirmed, 1 T.C. 738 (1943), as did a sharply divided Supreme Court. The bases for the decision are not altogether clear. At one point Justice Frankfurter emphasized that McDonald’s “campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years.” 323 U.S. at 60, 65 S.Ct. at 97. Perhaps fearing that this being-becoming distinction would cut too widely, Justice Frankfurter elaborated other factors. One was that allowance of a deduction for the assessments paid by McDonald would lead to deductions by persons who were not candidates but paid “such ‘assessments’ out of party allegiance mixed or unmixed by a lively sense of future favors,” id., a proposition which would not necessarily follow and which in any event would not explain the disallowance of McDonald’s own campaign expenses. This was followed by a sentence, again emphasizing the being-becoming distinction but with a different thought added for good measure, 323 U.S. at 60-61, 65 S.Ct. at 97:
To determine allowable deductions by the different internal party arrangements for bearing the cost of political campaigns in the forty-eight states would disregard the explicit restrictions of § 23 confining deductible expenses solely to outlays in the efforts or services — here the business of judging — from which the income flows. Compare Welch v. Helvering, 290 U.S. 111, 115-116 [54 S.Ct. 8, 9, 78 L.Ed.2d 212 (1933)].
After disposing of arguments based on what are now I.R.C. § 165 and § 212(1), he continued with some observations concerning the increased public hostility to campaign contributions by “prospective officeholders, especially judges,” and then concluded on two notes. One was that, 323 U.S. at 63-64, 65 S.Ct. at 98-99:
To find sanction in existing tax legislation for deduction of petitioner’s campaign expenditures would necessarily require allowance of deduction for campaign expenditures by all candidates, whether incumbents seeking reelection or new contenders. To draw a distinction between outlays for reelection and those for election — to allow the former and disallow the latter — is unsupportable in reason. It is even more unsupportable in public policy to derive from what Congress has thus far enacted a handicap against candidates challenging existing office holders. And so we cannot recognize petitioner’s claim on the score that he was a candidate for reelection,
(footnote omitted). The other was the desirability of according special deference to the Tax Court’s determination on a matter of the sort subjudice, id. at 64-65, 65 S.Ct. at 99. The Supreme Court has not had subsequent occasion to revisit the field plowed in McDonald.
The courts have echoed the various themes sounded in McDonald. Some decisions have stressed the being-becoming distinction; see, e.g., Diggs v. C.I.R., 715 F.2d 245, 250 (6 Cir.1983). Others have emphasized the policy argument against deduction of campaign expenses, namely, that allowing such deductions would involve the whole community in partial subsidization of the electoral expenses of a particular candidate — a subsidy that would pay a larger amount of the campaign expenses of high than of low bracket candidates. See, e.g., James B. Carey, 56 T.C. 477, 479-81 (1971), aff'd per curiam, 460 F.2d 1259 (4 Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 325, 34 L.Ed.2d 257 (1972). The appellants distinguish the latter cases, stressing that the expenses here at issue were not incurred in an election in which Mr. Rockefeller was pitted against another citizen but in a confirmation in which he was the only candidate. However, the policy argument in McDonald is only dubiously applicable to Campbell v. Davenport, 362 F.2d 624, 626 (5 Cir.1966), Nichols v. C.I.R., 511 F.2d 618 (5 Cir.) (en banc), cert. denied, 423 U.S. 912, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975), and Levy v. United States, 535 F.2d 47, 26 Ct.Cl. 97, cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976), disallowing the deduction of small qualification fees payable by any candidate to his party to help to defray the costs of conducting the primary election and of which “[n]o part ... was used to espouse the causes of party candidates in the general election.” Nichols, supra, 511 F.2d at 619. Further support for the Commissioner’s position can be found in Joseph W. Martino, 62 T.C. 840, 844 (1974), disallowing deduction of legal fees incurred by a successful primary candidate in defending his victory against an election contest suit filed by his opponent; Martino, like Mr. Rockefeller, was not seeking the suffrage of the people as against another candidate.
Appellants’ principal argument is that a post-McDonald decision of the Tax Court, in which the Commissioner has acquiesced, David J. Primuth, 54 T.C. 374 (1970), has undermined the being-becoming distinction. Primuth, the secretary-treasurer of a small corporation, Foundry Allied Industries, enlisted the aid of a “head-hunter” organization to find him a better job. This work resulted in his employment as “secretary-controller” of a company with greater geographical scope. The Tax Court held that the fees and expenses paid to the headhunter organization were deductible under I.R.C. § 162.
Judge Sterrett’s opinion for a plurality took off from the proposition that “a taxpayer may be in the trade or business of being an employee, such as a corporate executive or manager,” 54 T.C. at 377, rather than or in addition to the trade or business of holding a particular job, citing numerous cases including our own Hochschild v. C.I.R., 161 F.2d 817 (1947). With that established, Judge Sterrett believed that “the problem presented ... virtually dissolve[d] for it is difficult to think of a purer business expense than one incurred to permit such an individual to continue to carry on that very trade or business — albeit with a different corporate employer.” 54 T.C. at 379. However, he proceeded to emphasize the relatively narrow scope of the decision, id.:
Furthermore, the expense had no personal overtones, led to no position requiring greater or different qualifications than the one given up, and did not result in the acquisition of any asset as that term has been used in our income tax laws. It was expended for the narrowest and most limited purpose. It was an expense which must be deemed ordinary and necessary from every realistic point of view in today’s marketplace where corporate executives change employers with a noticeable degree of frequency. We have said before, and we say again, that the business expenses which an employee can incur in his own business are rare indeed. Virtually all his expenses will be incurred on behalf of, and in furtherance of, his corporate employer’s business. What we have here, however, is an exception to that rule.
(footnote omitted). Judge Tannenwald, joined by three other judges, concurred: they were concerned over the “subtle distinctions” which they saw developing in the deduction of employment agency fees and suggested that “everyday meaning” should be the touchstone in interpreting § 162. 54 T.C. at 382. In a separate concurring opinion, Judge Simpson took issue with language in the plurality opinion which he feared might confine the decision to cases where the taxpayer actually secured a new job. Id. at 383. Judge Featherston’s concurrence placed greater weight on a Revenue Ruling that explicitly “allow[ed] deductions for fees paid to employment agencies for securing employment.” Id. at 384. Six judges dissented. The Department of Justice rejected the Commissioner’s request for an appeal and the Commissioner acquiesced in the result, 1972-2 Cum.Bul. 2 (1972).
In Leonard F. Cremona, 58 T.C. 219 (1972), a majority of the Tax Court rejected an attempt by the Commissioner to contain Primuth to cases where the employee had in fact obtained a new position. Again the Department of Justice declined a request to appeal and the Commissioner acquiesced, 1975-1 Cum.Bul. 1 (1975).
However, the erosion of the being-becoming distinction effected by Primuth and Cremona and the Commissioner’s acquiescence in these decisions was partial only. The Tax Court, with the approval of the courts of appeals, has limited deductibility to cases where the taxpayer was seeking employment in the same trade or business. Moreover, the courts have insisted on a high degree of identity in deciding the issue of sameness. Thus, in William D. Glenn, 62 T.C. 270 (1974), the court found that the broader scope of activities permitted in Tennessee to certified public accountants as compared with public accountants made the former a new trade or business and, in consequence, that the expense of taking a review course designed to assist the taxpayer in qualifying for certification was not deductible. Similarly, being a registered pharmacist constitutes a different trade or business than being an intern pharmacist, so that expenses of attending courses on pharmacology were not deductible, Gary Antzoulatos, T.C.Memo. 1975-327 (1975). In Joel A. Sharon, 66 T.C. 515 (1976), aff'd, 591 F.2d 1273 (9 Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979), the Tax Court disallowed an IRS attorney’s deductions for expenses related to taking the California bar examination. The court found that these expenditures would permit the taxpayer to engage in the new “trade or business” of the general practice of law in the State of California. The Ninth Circuit agreed with the Tax Court’s reasoning that private practice involved “significantly different tasks and activities” from those required of an IRS lawyer, 591 F.2d at 1275. See, to the same effect, Joseph J. Vetrick, T.C. Memo. 1978-83 (1978), aff'd, 628 F.2d 885 (5 Cir.1980). The Tax Court has also disallowed a deduction for helicopter training expenses by an airline pilot. Edward C. Lee, T.C. Memo. 1981-26 (1981), aff'd on other grounds, Lee v. C.I.R., 723 F.2d 1424 (9 Cir.1984). The court found that “a helicopter pilot is in a different trade or business than is an airline pilot” and, since the taxpayer flew only fixed-wing aircraft in his current employment, “the helicopter flight training [led] to Mr. Lee’s qualification in a new trade or business.” Joseph Sorin Schneider, supra, T.C. Memo. 1983-753 (1983), denied a deduction sought by a taxpayer who had resigned from the U.S. Army with a captain’s commission and who later, after graduation, entered the business world as a consultant, for amounts spent in applying to graduate schools, in getting the graduate degrees of M.B.A. and M.P.A. at Harvard, and in seeking a summer job in Europe. The court said that the taxpayer’s business had been that of an Army officer and rejected his claim that he had been in the business of being a “manager” — a claim strongly resembling the one made here that Mr. Rockefeller was in the business of being “a governmental executive.” In Roger Eugene Evans, T.C. Memo. 1981-413 (1981), the court denied'a deduction for job seeking expenses to a taxpayer who had been in the Air Force for 22V2 years and had risen to the rank of Lieutenant Colonel and the post of special assistant to the commander of an Air Force base. The court was convinced that “petitioner’s service as an Air Force officer cannot be compared to any employment he might have obtained outside the Air Force” and that while he “undoubtedly sought employment that would utilize the skills he had acquired during his military career, he [had] failed to show that there would not be substantial differences between the employment he sought to obtain in the private sector and his service as an Air Force officer.” In sum, the Tax Court’s decisions have adopted what Judge Tannenwald, in his concurring opinion in Primuth, characterized as “the simple test of comparing the position which the taxpayer occupied before and after the change,” 54 T.C. at 382, and conform to the statement in Kenneth C. Davis, 65 T.C. 1014, 1019 (1976), that “[i]f substantial differences exist in the tasks and activities of various occupations or employments, then each such occupation or employment constitutes a separate trade or business.”
Appellants’ brief uses a number of different phrases to describe Mr. Rockefeller’s trade or business at the time of his nomination to be Vice President — “an executive in federal and state governments” (p. 8); “an executive in public office” (p. 8); “an executive in public service” (p. 17); and “a governmental executive” (p. 22). In fact, the only public posts Mr. Rockefeller held at the time of his nomination were the chairmanships of two commissions, posts in which he had no executive duties. One of these, the National Commission on Water Quality was created by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, to review water pollution control methods and issue a report to Congress recommending modifications. Although Mr. Rockefeller was elected chairman by the other members when he joined the Commission while still Governor of New York, the record reveals almost nothing about his activities there. The Commission on Critical Choices for Americans was an idea of Mr. Rockefeller’s. It was not a governmental body, although its membership included some members of Congress and of the executive branch. Since federal funding was denied, the Commission was funded from private sources and foundation grants. If only these two activities were to be considered, it would be plain beyond all argument that holding the chairmanship of these Commissions and being Vice President are not the same trade or business but rather separate trades or businesses, if indeed membership on the commissions, particularly the Commission on Critical Choices, was a trade or business at all.
However, a taxpayer who is unemployed when the expenses are incurred is “viewed as still engaged in the business of providing the type of services performed for [his] prior employer, unless ‘there is a substantial lack of continuity between the time of [the employee’s] past employment and the seeking of the new employment.’ ” 1 Bittker, Federal Taxation of Income, Estates and Gifts § 20.4.6, at 20-85 to 20-86 (1981), quoting Rev.Rul. 75-120, 1975-1 Cum.Bul. 55, at 56; see, 4A Mertens, The Law of Federal Income Taxation § 25.08, at 33 (1985) (taxpayer’s “trade or business [does] not cease to exist during a reasonable period of transition”). See also Stephen G. Sherman, supra, T.C. Memo. 1977-301. Appellants urge that this principle allows us to look to Mr. Rockefeller’s fifteen years of service as Governor of New York in considering whether the confirmation expenses on his nomination to be Vice President were in connection with the continuation of the same trade or business. We disagree, for two reasons. In order to take advantage of what is called the “hiatus” principle, a taxpayer must at least show that during the hiatus he intended to resume the same trade or business. See Sherman, supra, T.C. Memo. 1977-301. There is no such showing here. Mr. Rockefeller clearly did not intend to run again for Governor after having resigned that office after holding it for fifteen years. Indeed, the stipulation states that Mr. Rockefeller resigned the governorship “to devote his full time to the Chairs” of the two commissions, and there is nothing to suggest that he was contemplating holding executive public office again. The Vice Presidency became available only due to the resignation of President Nixon in the summer of 1974 — an event that was not foreseeable until shortly before it occurred. We also cannot fault the Tax Court’s holding that being governor of the second most populous state in the union and being Vice President of the United States are not the same trade or business in the narrow sense in which sameness has been consistently characterized. While there are certain areas of overlap, the governorship entails many duties — enforcement of the laws of the state, developing and promoting new laws, supervising a multitude of departments and agencies having thousands of employees and spending billions of dollars, proposing and securing the passage of a budget and the revenues needed to meet it, making appointments, and lobbying for the interests of the state with the Federal Government — which either find no counterparts in the Vice Presidency or find them only to the extent, usually quite limited, which the President has directed. On the other hand, the Vice Presidency involves many duties not found in the governorship of New York — presiding over the Senate, acting on behalf of the President on ceremonial occasions both within and without the United States, and executing special assignments by the President — not to speak of the Vice President’s most important task, readying himself for the possibility of assuming the Presidency on a moment’s notice. Although positions with somewhat different duties and responsibilities may be found to be within the same trade or business, whether in public or private employment, the Tax Court’s finding that the Vice Presidency involved a trade or business for Mr. Rockefeller different from any in which he was engaged at the time of his nomination is not one that we are free to disturb, see I.R.C. § 7482(a).
Appellants ask us to take a still broader view and consider Mr. Rockefeller as having been engaged in the same trade or business since his appointment as Coordinator of Inter-American Affairs in 1940. But the cases do not recognize a definition of “trade or business” wide enough to bring all Mr. Rockefeller’s various posts within it. While there might be sufficient resemblance and continuity between the posts of Coordinator of Inter-American Affairs which Mr. Rockefeller held between 1940 and 1944 and that of Assistant Secretary of State for American Republic Affairs which he held between 1944 and 1945 to have qualified him as being in the business of being a public servant with special interest and expertise in Latin America, we see little resemblance between these positions and his service as Undersecretary of Health, Education and Welfare in 1953 and 1954 or as Governor of New York between 1959 and 1973. Furthermore there are substantial gaps between Mr. Rockefeller’s various posts — five' years between 1945 and 1950, one and one-half years between 1951 and 1953, three years between 1955 and 1958 — far longer than the “hiatus” theory would recognize. See, e.g., Canter v. United States, 354 F.2d 352, 173 Ct.Cl. 723 (1965) (taxpayer who discontinued nursing activities for more than four years held not to retain status of being in the trade or business of nursing); Peter G. Corbett, 55 T.C. 884 (1971). See also Rev.Rul. 68-591, 1968-2 Cum.Bul. 73 (1968) (“Ordinarily, a suspension [of employment] for a period of a year or less, after which the taxpayer resumes the same ... trade or business, will be considered temporary”). Our reading of the record shows Mr. Rockefeller as a distinguished and public-spirited citizen, ready, for a third of a century, to put his great abilities at the disposal of the government in both appointive and elective office. While he was, of course, entitled to deduct unreimbursed expenses incurred in performing the functions of any of the many offices he held, I.R.C. § 7701(a)(26), the Tax Court was warranted in holding that he had not engaged in any trade or business comparable to the Vice Presidency, within the rather narrow sense which the courts have reasonably given to the concept of identity. We therefore have no occasion to decide whether the “policy” reasons underlying the decisions disallowing expenses incurred in elections apply to expenses incurred in seeking confirmation to an appointive office which would seem to be properly regarded as the same trade or business, or whether if they generally do not, there are special considerations for applying them to the unusual bicameral confirmation required by the Twenty-Fifth Amendment which the Commissioner characterizes as the equivalent of an election.
The judgment of the Tax Court is affirmed.
. Mrs. Rockefeller’s involvement arises solely because she and Mr. Rockefeller filed a joint return.
. The Senate and Conference Committee Reports describe this addition as "clerical” and "declaratory of existing law,” S.Rep. No. 558, 73d Cong., 2d Sess. at 29; H.R.Rep. No. 1385, 73d Cong., 2d Sess. at 17 (Conference Report) (1934). A discussion before the Senate Committee on Finance suggests that the primary reason for the provision was to overcome doubts whether Senators were engaged in a "trade or business” so as to permit deduction for extra staff and telephone expenses. 1 Hearings before Committee on Finance on H.R. 7835, 73d Cong., 2d Sess. (March 6, 1934), p. 29-30. The Ninth Circuit has said that § 48(d) was adopted to modify the general rule that “in order for an activity to be considered a trade or business under Section 162 it must be engaged in for profit.” Frank v. United States, 577 F.2d 93, 95 (9 Cir.1978). The court cited Jackling v. C.I.R., 9 B.T.A. 312, 320 (1927), as the "best statement of the [existing] law" with respect to public offir cers, which the amendment was said to have codified. In Jackling, the Board of Tax Appeals allowed business deductions by a war-time government employee whose salary was only one dollar a year and rejected the Commissioner’s argument that the expenses were not deductible because the taxpayer’s employment was not profit motivated. Further support for this reading of § 48(d) can be found in Revenue Ruling 55-109, 1955-1 Cum.Bul. 262 (1955), in which the Commissioner interpreted the section as allowing a public office to be treated as a trade or business “even though the incumbent thereof may serve without compensation, a factor which is ordinarily regarded as a prerequisite to the pursuit of a trade or business."
. Justice Frankfurter delivered a plurality opinion for himself, Chief Justice Stone and Justices Roberts and Jackson. Justice Rutledge concurred in the result. Justice Black dissented for himself and Justices Reed, Douglas and Murphy. It may not be altogether accidental that three of the dissenters had held elective office, an experience not shared by any member of the plurality.
It should be noted that the dissenters did not disagree with the plurality’s conclusion that the amounts were not "ordinary and necessary expenses of a trade or business”; they argued rather that the expenses came within what is now § 212(1), adopted in 1942 to overrule Higgins v. C.I.R., 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783 (1941), which allowed deduction of "the ordinary and necessary expenses [of an individual] paid or incurred ... for the production or collection of income.”
. The force of this distinction between election and confirmation expenses is debatable. Mr. Rockefeller’s expenses included not simply amounts incurred in preparing answers to questions of Senators and Representatives but also amounts incurred, with entire propriety, in convincing Congress that he was a good selection for Vice President. Nomination of Nelson A. Rockefeller to be Vice President of the United States: Hearings before the House Comm, on the Judiciary, 93d Cong., 2d Sess., pp. 1-3 (1974). While Mr. Rockefeller was not in direct contest with anyone, others were waiting in the wings if Congress was not so convinced. For reasons developed below, we are not required to pass on the force of the distinction.
. Most of these cases concerned education expenses, as to which there is a regulation, Treas. Reg. § 1.162-5 (1960). This elaborates on the statute by defining a specific type of deductible expenses, § 1.162-5(a)(2), and by prohibiting the deduction of expenses incurred in order to attain minimum educational requirements for a position, § 1.162-5(b)(2), and expenses for a program of study leading to qualification in a new trade or business, § 1.162-5(b)(3). However, the Tax Court cites education cases in decisions regarding other types of expenses incurred in obtaining a new position, see, e.g., Primuth, supra, 54 T.C. at 378; Joseph Sorin Schneider, T.C. Memo. 1983-753 (1983).
. Although the court quoted Treas.Reg. § 1.162-5, including the minimum educational requirement, § 1.162-5(b)(2), it did not base its decision upon that section.
. The court distinguished Stephen G. Sherman, T.C.Memo. 1977-301 (1977), which had allowed deduction of expenses of attending the Harvard Business School by a taxpayer who had been employed as a civilian by the Army and Air Force Exchange Service as chief of its Plans and Programs office and, after, graduating and applying unsuccessfully for reinstatement to his former job, was hired by private industry as a director of planning and research.
. The members of the Commission on Water Quality who were not officers or employees of the United States were paid by the Government on a per diem basis, 33 U.S.C. § 1325(f); it does not appear whether Mr. Rockefeller accepted such payments, at least for the period when he was Governor of New York. The record is silent with respect to what salary, if any, was paid to Mr. Rockefeller as Chairman of the Commission on Critical Choices for Americans.
. E.g., a judge of a federal district court nominated to a court of appeals, a judge of a state court nominated to a federal court, or a foreign service officer nominated to be an ambassador.
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_casetyp1_7-3-5
|
G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
James WILKETT d/b/a Wilkett Trucking Co., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
No. 82-1373.
United States Court of Appeals, District of Columbia Circuit.
April 22, 1988.
John J. McMackin, Jr., and June E. Ed-mondson, Washington, D.C., were on the motion for attorney fees and expenses.
Michael Martin, Atty., Colleen J. Bombardier, Atty., Lawrence H. Richmond, Deputy Associate General Counsel, Henri F. Rush, Associate General Counsel, John Broadley, General Counsel, I.C.C., William F. Baxter, Charles F. Rule, Asst. Attys. Gen., Robert B. Nicholson, and Laura Heiser, Attys., Dept, of Justice, Washington, D.C., were on responses to motion for attorney fees and expenses.
Before EDWARDS and RUTH BADER GINSBURG, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
James Wilkett seeks an award of attorney fees and expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (1982 & Supp. Ill 1985), as the prevailing party in a case against the Interstate Commerce Commission (“ICC”). See Wilkett v. ICC, 710 F.2d 861 (D.C.Cir.1983). The disposition of this case has been long delayed because the original request for fees languished unnoticed in the Clerk’s Office for almost four years. We express our regrets for this unfortunate situation, especially since there is no good excuse for the mishandling of Wilkett’s initial application for fees.
Albeit belatedly, we now conclude that a fee award is appropriate, because the position of the United States in agency proceedings and in litigation before this court lacked substantial justification and because no special circumstances render an award unjust. We find, however, that two of the Government’s objections to the amounts claimed by Wilkett are valid. We have therefore modified the requested award accordingly.
I. Background
Wilkett Trucking Company (“Wilkett Trucking”), a family business owned by James Wilkett, began operations in 1975 and received its first ICC license in 1978. In March 1981, it applied to the ICC for expanded authority to transport coal from all points in Oklahoma to any point in Texas. The ICC denied Wilkett Trucking’s license application because James Wilkett had been convicted in 1981 of second-degree murder under Oklahoma law and conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 (1976). In the ICC’s judgment, Wilkett’s evident disregard for the law rendered him unfit to hold a license, and his ownership of Wilkett Trucking in turn rendered the company unfit for the ICC authorization it had requested.
Wilkett appealed the ICC’s decision to this court. The ICC thereupon requested us to remand the case for reconsideration, which we did. Upon reconsideration, the ICC affirmed its earlier denial of Wilkett Trucking’s license application. Wilkett again appealed.
This time we reached the merits and reversed. Finding that the ICC’s decision constituted “an unexplained departure from previously applied standards,” we ruled that the ICC’s denial of Wilkett Trucking’s application was arbitrary and capricious. Wilkett v. ICC, 710 F.2d 861, 865 (D.C.Cir.1983). Accordingly, we remanded the case to the ICC “for the purpose of promptly issuing the authority with such reasonable time limitations as it deems necessary.” Id.
On July 22, 1983, Wilkett filed a timely application for attorney fees and other expenses under the EAJA, including fees and expenses incurred in making the fee application. The Government opposed Wilkett’s application. Wilkett submitted a reply to the Government’s objections (for the preparation of which Wilkett also requested attorney fees and expenses), and the Government responded with a second memorandum. Due to a clerical error in the Court Clerk’s Office, the panel that decided Wilk-ett’s appeal was not notified of his attorney fee application until four years later, when Wilkett inquired into the delay. On October 14, 1987, we directed the parties to submit supplemental memoranda addressing the ramifications for Wilkett’s application of the 1985 amendments to the EAJA and of pertinent judicial decisions issued since the time of Wilkett’s initial application.
II. Analysis
Section 2412(d)(1)(A) (Supp. Ill 1985) provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
The Government does not deny that Wilkett meets the statutory definition of a “party” or that he prevailed in his appeal. Nor is there any longer reason to doubt that Wilkett’s suit constituted a “civil action” not sounding in tort. To be sure, in 1983 the Government contended that judicial review of an agency licensing decision was not a “civil action” for purposes of 28 U.S.C. § 2412 because another provision of the EAJA, codified at 5 U.S.C. § 504(b)(1)(C) (1982), explicitly precluded an award of attorney fees in connection with agency proceedings “for the purpose of granting or renewing a license.” The 1985 amendments to the EAJA, however, added the phrase “including proceedings for judicial review of agency action” to clarify the unexplained existing reference to “any civil action.” Equal Access to Justice Act, Extension and Amendment of 1985, Pub.L. No. 99-80, § 2(a)(2), 99 Stat. 183, 184. The Government apparently concedes that this addition eviscerates its former objection. See Respondents’ Supplemental Memorandum in Opposition to Petitioner’s Application for Fees and Other Expenses at 4 n. 3. In light of the change, Wilkett’s suit plainly falls within the statutory definition of “any civil action.”
Because these prerequisites have been met, our analysis must proceed in three stages. First, we must ascertain whether the Government’s position was “substantially justified.” If it was not, then we must further ask whether “special circumstances” would render an award of attorney fees unjust. If the answer to this question is also negative, we must, finally, consider the Government’s objections to the amount of the fees Wilkett claims.
A. Was the Position of the United States “Substantially Justified”?
In determining whether the Government’s position was substantially justified, we must examine the ICC’s actions and explanations as well as the Government’s arguments before this court. The EAJA, as amended, defines the “position of the United States” to mean, “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D) (Supp. Ill 1985). The EAJA further provides that “[wjhether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.” 28 U.S.C. § 2412(d)(1)(B) (Supp. Ill 1985). The burden of proving that its position was substantially justified both in agency proceedings and in litigation rests with the Government. See Federal Election Comm’n v. Rose, 806 F.2d 1081, 1086-87 & n. 12 (D.C. Cir.1986); Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).
Under the law of this circuit, the Government’s position was “substantially justified” if the Government “acted slightly more than reasonably, even though not in compliance with substantive legal standards applied in the merits phase” of the litigation. Rose, 806 F.2d. at 1087; see also Baker v. Commissioner, 787 F.2d 637, 643 n. 10 (D.C.Cir.1986); Blitz v. Donovan, 740 F.2d 1241, 1244 (D.C.Cir.1984); Spencer, 712 F.2d at 558. A finding that an agency acted arbitrarily and capriciously within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), does not preclude the Government from demonstrating that the agency’s actions and its conduct in litigation were “substantially justified.” Some types of arbitrary and capricious behavior, such as an agency’s failure to provide an adequate explanation for its actions or its failure to consider some relevant factor in reaching its decision, may not warrant a finding that an agency’s action lacked substantial justification under applicable statutes or regulations. See, e.g., Rose, 806 F.2d at 1087-89. However, a finding that an agency acted arbitrarily and capriciously by denying equal treatment to two similarly situated parties, or by failing to enforce a rule in a situation to which it plainly applied, renders it much more likely that the Government’s action was not substantially justified. See Rose, 806 F.2d at 1089.
On the facts of this case, we find that the Government has failed to satisfy its burden of showing that its position was substantially justified. The ICC’s actions and the Government’s arguments before this court clearly fail this circuit’s test of “slightly more stringent than ‘one of reasonableness.’ ” Spencer, 712 F.2d at 558. Indeed, they do not even deserve the appellation “reasonable.”
In denying Wilkett Trucking’s license application, the ICC considered only the owner’s fitness for the expanded authority. Moreover, it based its decision solely on James Wilkett’s criminal convictions, not on his record of compliance with ICC regulations. We described this approach as “misdirected” and “unreasonable” in overturning the ICC’s decision:
Notwithstanding the fact that the grant of authority will be issued to the [Wilkett Trucking] Company, the Commission focused solely upon the fitness of the individual proprietor, James Wilkett. Such an inquiry is misdirected. While the proprietor’s fitness may be relevant, the primary focus should be upon the Company’s record of operations. In this instance, the record reveals and the Commission acknowledges that since commencing operations in 1978, Wilkett Trucking has never been cited for violation of Commission rules or regulations. The Company has demonstrated its commitment to continued lawful service_■
There is no record evidence to suggest that the company would operate unlawfully in the future.... The Commission based its conclusion that the Company was unfit solely upon its view that James Wilkett’s convictions were indicative of a predisposition on the part of the Company to violate trucking statutes and regulations. That conclusion is unreasonable.
Wilkett, 710 F.2d at 863-64.
We further noted that, “[i]n addition to improperly equating James Wilkett’s fitness with that of the Company, the Commission also disregarded its own standards for evaluating fitness.” Id. at 864. The ICC’s decision betrayed a gross failure to use the test it had “consistently” applied “[w]hen judging a carrier’s fitness in light of past violations.” Id. We concluded:
In its Wilkett decisions, the Commission did not apply its aforequoted standards and philosophy in evaluating the fitness issue. Such an unexplained departure from previously applied standards suggests that the Commission’s decision in this case is arbitrary and capricious. The Commission’s decisions in [Allan B. Robbins, d/b/a Robbins Trailer Service, No. MC-160342 (I.C.C. Oct. 13, 1982),] and Wilkett are difficult to reconcile and, at the least, suggest an inconsistency in decision-making.
Id. at 865 (citations omitted).
The Government suggests that the agency’s position was substantially justified, and that our opinion not only recognizes the arguable merit in the agency’s position by describing the ICC’s actions as merely “misdirected,” but faults it primarily for its failure to offer a justification for its actions, not for their being unjustifiable. The Government’s reading of our opinion, however, is untenable. We described the ICC’s exclusive focus on James Wilkett’s criminal offenses not only as “misdirected,” but as positively “unreasonable.” And while our opinion ádmittedly focused on the ICC’s failure to explain its decision, particularly in light of clearly contrary agency precedent, our holding perforce assumed that no adequate explanation was possible. We did not simply remand the case to the ICC for a fuller statement of reasons on behalf of its decision. Rather, we granted Wilkett Trucking’s petition for review and reversed the ICC’s decision “because the Commission failed to apply its usual standards in adjudging fitness.” 710 F.2d at 865. “As the finding of unfitness is clearly in error,” we said, “the Commission is directed to issue the authority requested.” Id. We could not have stated more plainly that the ICC’s actions lacked substantial justification.
A cursory review of the relevant factors listed in Spencer, 712 F.2d at 559-61, buttresses this conclusion. Although those factors were designed to guide a court in determining whether the Government’s stance in litigation, as opposed to the underlying agency action, was substantially justified, they remain relevant to our inquiry, both because the “position of the United States” includes its litigating posture and because two of these factors may be used to assess the justifiability of agency action as well. One of the factors mentioned in Spencer — the clarity of the governing law — certainly militates in favor of awarding attorney fees. In Wilkett, we found that the ICC failed to apply the test of fitness it had “consistently” applied in the past, and that when the test was properly applied, the ICC’s “finding of unfitness [was] clearly in error.” Wilkett, 710 F.2d at 865. A second factor discussed in Spencer — the consistency of the Government’s position — again favors Wilkett’s application. The ICC’s decision in Wilkett cannot easily be reconciled with its ruling in Robbins. We were unable to square the two cases when we reached our decision on the merits, and the Government has never offered a plausible demonstration of their consistency. We must therefore conclude that both the Government’s position in litigation and the ICC’s decision were not “substantially justified.” They did not even pass the test of “reasonableness” the Government has urged us to adopt.
B. Do “Special Circumstances” Make a Fee Award Unjust?
Even if the position of the United States was not substantially justified, a fee award is inappropriate if “special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The legislative history of the provision indicates that this “safety valve” was designed to “insure that the Government is not deterred from advancing in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts” and to permit courts to rely on “equitable considerations” in denying a fee award. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4990. We emphasized in Spencer, however, that fees should ordinarily be awarded if the Government loses a “test case” in which it argued that controlling precedent should be overruled, not merely that precedent should be extended or reinterpreted in a novel way. A possible award of fees should not deter the Government from bringing a “test case” if it deems the matter sufficiently important; more significantly, it would be unjust to compel the private party, chosen arbitrarily by the Government, to incur the full cost of reconsidering an established rule when the benefits of doing so redound to the community as a whole. See Spencer, 712 F.2d at 558-59 & n. 72.
The Government contends that in Wilk-ett the ICC considered an issue of first impression — whether a trucking company might lawfully be denied a license based upon the proprietor’s criminal convictions for nontransportation offenses — and resolved it by extending the criteria it routinely used to assess an applicant’s fitness. We find this characterization dead wrong. As we said when rendering judgment on the merits, the ICC’s decision did not constitute a plausible extension of prevailing standards of fitness. Rather, it marked “an unexplained departure from previously applied standards” that was inconsistent with the ICC’s decision in a similar case. Wilkett, 710 F.2d at 865. We concluded, moreover, that the Government’s position was “misdirected,” indeed flatly “unreasonable.” In the face of these findings, the Government can hardly argue that it advocated not only a novel but also a “credible” extension of existing law, which the legislative history establishes as a precondition to a denial of fees when the Government’s position lacked substantial justification. Wilkett is clearly entitled to an award of attorney fees.
C. Calculation of the Fee Award
Wilkett requests $71,561.41 in fees and expenses, apportioned as follows:
Fees associated with merits litigation $40,125.00
Photocopying 445.01
Fees associated with initial fee application 5,988.00
Fees associated with reply memorandum 14,418.00
Photocopying 192.20
Fees associated with supplemental memorandum ordered by court on 10/14/87 10,125.00
Photocopying 268.20
TOTAL $71,561.41
We consider in turn the Government’s various objections to the amounts requested.
1. The Availability of a Fee Award for the 1987 Memorandum
The Government contends that, even if Wilkett has a right to attorney fees in connection with the merits litigation and his 1983 memoranda in support of his fee application, he may not recover for the 1987 memorandum this court ordered him to submit. The Government notes that Wilkett waited four years from the time he filed his fee application before inquiring into its status. The Government conjectures that the supplemental memorandum we requested would not have been necessary had Wilkett earlier directed the court’s attention to the delayed processing of his application. It therefore claims it ought not have to pay for Wilkett’s indolence. See Respondents’ Supplemental Memorandum in Opposition to Petitioner’s Application for Fees and Other Expenses at 10 n. 12.
This argument is baseless. A court has authority to require supplemental briefing by the parties as it deems helpful. Indeed, we do so frequently, particularly where, as here, the law is and has been in a state of flux. As the Government recognizes, if the EAJA applies to the merits litigation of a case, it applies equally to work done in connection with the prevailing party’s fee application. Any work ordered by this court is similarly compensable.
Furthermore, we are unwilling to hold Wilkett responsible for an error committed in our Clerk’s Office. The blame for the delay in this case lies with the court, not the parties, and we will not penalize Wilk-ett for our error.
Finally, the rapidly developing case law and the statutory changes wrought by the 1985 EAJA amendments would likely have prompted us to request additional assistance from the parties even if Wilkett had inquired about the processing of his fee application after only a couple of years. Hence, we see no reason whatever to deny Wilkett recompense for work done on his 1987 memorandum.
2. Cost-of-Living Adjustments to the Maximum Statutory Fee
Section 2412(d)(2)(A) reads in part:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that... (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
This provision unambiguously licenses cost-of-living adjustments (“COLAs”) to the $75 per hour ceiling established by the EAJA. In computing a COLA, however, we must answer two questions. First, what should serve as the baseline date in measuring the COLA? Second, should an adjustment be made to the year in which legal services were rendered, or to the year in which the fee award is paid?
The first of these questions was answered by our decision in Hirschey v. FERC, 777 F.2d 1, 5 (D.C.Cir.1985). The baseline date for measuring an adjustment to the statutory cap is 1981, the year in which the EAJA became effective. The fact that this provision was not amended in 1985 when the sunset provision of the EAJA (which was initially to remain in force only three years) was repealed, does not entail that the $75 per hour cap should form a new baseline in 1985. There is no indication in the legislative history that Congress intended the 1985 EAJA amendments to have this consequence. In addition, our adoption of a new $75 per hour baseline in 1985 would have the anomalous result of entitling parties to collect larger fee awards for work done in 1984 than in 1986, since the former could obtain a three-year adjustment to the $75 per hour cap, whereas the latter could only receive a one-year adjustment to the same cap. We therefore adhere to our view in Hirschey that a COLA to the $75 per hour ceiling should be measured from 1981.
The second question has also been answered already by this court. In Massachusetts Fair Share v. Law Enforcement Assistance Administration, 776 F.2d 1066 (D.C.Cir.1985), we refused to allow a COLA to the $75 per hour cap for work performed in 1981, even though fees were not awarded until 1985. See id. at 1069. We are constrained to follow that holding in reviewing Wilkett’s fee request.
The adjustment to the $75 per hour maximum statutory fee is relevant to two elements of Wilkett’s request. First, one of Wilkett’s lawyers billed at a rate of $85 per hour for work done in 1982-83. That hourly rate exceeds the cap of $75 per hour even with a COLA. Unless the “special factors” exception applies, that amount is not fully compensable under the EAJA.
Second, Wilkett requests reimbursement for work performed on his 1987 Supplemental Memorandum at hourly rates of $100 and $125. These figures far exceed the $75 per hour cap with a COLA to November 1987, when most of the work on the Supplemental Memorandum was performed. According to the U.S. Department of Labor Consumer Price Index, the cost of living increased in the Washington, D.C.Maryland-Virginia urban area by 27.77% between October 1981 and November 1987. This produces an adjusted cap of $95.83. Unless “special factors” justify increasing this amount, Wilkett’s request for complete reimbursement for these services must be denied. Wilkett’s attorneys billed 47.3 hours at a rate of $125 per hour, and 39.5 hours at a rate of $100 per hour, resulting in a total bill for the two attorneys involved of $9,862.50. If the adjusted cap of $95.83 is applied to these services, the fee award must be reduced to $8,318.04.
3. Unusual Delay as a “Special Factor”
Section 2412(d)(2)(A) limits awards of attorney fees to the $75 per hour cap adjusted for increases in the cost of living “unless the court determines that... a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” In the past, we have increased the adjusted cap to compensate parties for the cost of foregone investment attributable to delayed payment of the award, on the assumption that delay may be counted as a “special factor” justifying a higher award. See Hirschey, Til F.2d at 5 (award calculated on basis of current billing rates rather than rates when services performed because processing of fee award was greatly delayed by clerical error in Clerk’s Office); Action on Smoking & Health v. Civil Aeronautics Bd., 724 F.2d 211, 219 (D.C. Cir.1984) (slight increase in cap allowed because payment of award occurred four years after services were rendered, where delay was partly attributable to agency’s six requests for stays).
We continue to believe that delay may be regarded as a “special factor” under the EAJA. The Supreme Court’s decision in Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), does not alter the law of the circuit on this point. The Court in Shaw held that, in the absence of express congressional consent, a fee award may not be adjusted upward to take account of inflation or the opportunity cost of capital. However, the statutory provision considered by the Court in Shaw was 42 U.S.C. § 2000e-5(k), which only allowed an award of “a reasonable attorney’s fee.” By contrast, the EAJA explicitly permits a court to raise the $75 per hour ceiling if it determines “that an increase in the cost of living or a special factor... justifies a higher fee.” Therefore, we adhere to the holdings enunciated in Hirschey and Action on Smoking, which read section 2412(d)(2)(A) to allow increases in the statutory cap to compensate parties for prolonged delay in payment when a court deems such increases equitable. In reaching this conclusion, we think it significant that the Supreme Court has said, after its decision in Shaw: “We do not suggest... that adjustments for delay are inconsistent with the typical fee-shifting statute.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, — U.S. —, 107 S.Ct. 3078, 3082, 97 L.Ed.2d 585 (1987).
We emphasize, however, that no adjustment of the $75 cap other than that necessary to compensate for an increase in the cost of living is available in routine cases. Some delay in payment is inevitable, given the strain under which almost all courts labor. The normal delay attendant on litigation of a fee request can hardly be called a “special factor.” Nor will we permit an increase in the cap in every instance when there has been a delay in payment that is unusually long. If, for example, a prolonged delay is attributable to the negligence of the party requesting fees, an upward revision of the adjusted cap might not be warranted. Where the delay is exceptional and not attributable to negligence or improper conduct by the prevailing party, however, an increase might be appropriate where the prevailing party is able to justify the increase it seeks.
In the instant case, we find that Wilkett has made the requisite showing with regard to work billed by one of his attorneys at $85 per hour in 1982-83. The small increase in the adjusted cap that Wilkett has requested for this work is amply justified by the exceptional delay, through no fault of his own, in our consideration of his application. We therefore allow recovery at a rate of $85 per hour for the attorney’s services over five years ago.
We refuse, however, to allow Wilkett to obtain attorney fees at hourly rates of $100 and $125 per hour for work performed in late 1987. Wilkett contends that we should permit recovery of fees in excess of the adjusted cap of $95.83 per hour, in order to compensate him to some extent for delayed payment of the fee award for services performed in 1982-83. See Petitioner’s 1987 Supplemental Memorandum at 20-21. However, Wilkett asks us to do what the law plainly forbids. Our award of fees for work performed in 1987 is not tardy. Hence, the statute does not permit us to order reimbursement for this work at a rate above the adjusted cap of $95.83 per hour. Because we lack statutory authorization to grant Wilkett’s illogical request for a roundabout, partial adjustment for the unusual delay in compensating him for his attorneys’ earlier services, we cannot award him compensation for the “special factor” of protracted delay except to the extent that we permit recovery of hourly rates of $85 billed in 1982-83.
4. Allegations of Excessive Fees
The Government contends that several of the amounts claimed by Wilkett are excessive, and thus not permitted under the statutory allowance of “reasonable” attorney fees “based upon prevailing market rates for the kind and quality of the services furnished.” 28 U.S.C. § 2412(d)(2)(A).
(a)The $75 Per Hour Rate for a First-Year Associate in 1983
The Government asserts that an hourly rate of $75 for work performed by a new associate in 1982-83 is unduly high. After reviewing the affidavits submitted by Wilkett’s attorneys and evidence of local billing rates submitted in connection with the fee claim in Laffey v. Northwest Airlines, 572 F.Supp. 354 (D.D.C.1983), which Wilkett has also supplied, we conclude that the $75 per hour rate charged by one of Wilkett’s attorneys in 1982-83 is not unreasonable.
(b) Thirteen Hours Spent Researching Scope of Review
The Government charges that thirteen hours was an excessive amount of time for an experienced attorney to spend researching the scope of review of ICC licensing decisions, and that Wilkett should not be permitted to recover the entire amount his attorneys billed for this service. We reject the Government’s contention. The portion of the fee request to which the Government points covers not only research concerning the scope of review, but also client conferences, the preparation of a timetable, and the drafting and filing of the Petition for Review. Moreover, only one-half hour was billed by a senior attorney. The bulk of the time — 12.6 hours — was billed at a lower rate by a law clerk. We therefore grant Wilkett full recovery of the cost of this work.
(c) Total Hours Billed for Merits Brief
Wilkett requests $16,599 for 146.9 lawyer hours and 143.1 law clerk hours spent preparing the merits brief in this case. The Government argues that this bill is inflated, because the issues in the case were simple, the administrative record short, and the arguments before this court almost identical to those made before the ICC. Wilkett’s attorneys, however, have prepared a detailed itemization of their work on the brief. Because we have no reason to question their probity, and because the number of hours billed does not strike us as unreasonable, we decline the Government’s invitation to allow only partial recovery.
(d)The $1,950 Unopposed Motion to Expedite
The Government notes that Wilk-ett’s attorneys billed $1,950 for 24.8 hours spent in connection with Wilkett’s unopposed motion to expedite his appeal. The Government considers this amount excessive, particularly in view of the fact that the short memorandum in support of the motion cited no cases. Wilkett’s attorneys replied that because Wilkett Trucking’s business was deteriorating, expedited consideration was important. They therefore thought it essential to prepare the motion carefully, even though it was unopposed. The absence of citations, they say, stems from the simple fact that their research failed to uncover authority on point.
In light of Wilkett’s explanation and documentation in support of this work, we have no reason to question the hours submitted. The hours would seem unduly high only if counsel had prepared the motion with no effort at legal research. The fact that their legal research bore no fruit is no reason to deny them fees for the time spent on this work. Furthermore, counsel correctly recognized that there was no guarantee that their motion would be granted merely because it was unopposed. Therefore, it made good sense for them to research the issue.
(e)72.9 Hours Spent Preparing for and Participating in Oral Argument
Wilkett asks for $5,941.50 for 72.9 hours billed by his attorneys for their preparation for oral argument and participation therein. The Government decries this claim as unreasonable. It notes that each side was allotted only fifteen minutes for oral argument, and that the attorney who argued the case billed 51.4 hours, even though he had written the brief the previous year and had spent almost 65 hours drafting the reply brief two months prior to oral argument.
We agree with the Government that this bill is plainly excessive. Although seventy hours' preparation might be justified in a complex case, particularly when the lawyer arguing the case on appeal has not done considerable work on it in its earlier stages, this case did not warrant so great an expenditure of time. The issues it presented were not especially complicated and Wilk-ett’s lead attorney had directed the litigation from start to finish. The normal amount of time for average cases was allotted for oral argument. We therefore grant an award of $2,970.75, which represents half the amount Wilkett requested.
(f)The $14,418 Reply Memorandum Supporting Wilkett’s Fee Application
Wilkett requests $14,418 in fees incurred in preparing the reply memorandum in support of his fee application. When Wilkett made this request initially, the Government suggested that the amount claimed was unduly high, given that the arguments largely tracked those presented in the memorandum accompanying his fee application. The Government acknowledged, however, that its allegation was necessarily speculative, since Wilkett had failed to itemize the work performed by his attorneys in connection with the reply memorandum.
On February 5,1988, we directed Wilkett to provide an itemized bill for this work. Wilkett has done so, and his request seems to us adequately documented and not patently unreasonable. We therefore grant this request in full.
III. Conclusion
For the foregoing reasons, we accede to Wilkett’s fee request with the following modifications. First, the $40,125 requested for work done on the merits phase of the litigation is reduced by $2,970.75, because the amount of time claimed in preparation for oral argument is unreasonably high. Second, the amounts claimed in fees associated with Wilkett’s 1987 Supplemental Memorandum must be lowered, in accordance with the $95.83 per hour cap on attorney fees, from $10,125 to $8,580.54.
Accordingly, we award Wilkett $67,-046.20 in attorney fees and other expenses, calculated as follows:
Wilkett’s Request $71,561.41
MINUS:
Excess Oral Argument 2,970.75
Excess 1987 Memorandum 1,544.46
TOTAL $67,046.20
So Ordered.
. The 1985 amendments unquestionably apply to this case. The Extension and Amendment Act of 1985 provides that "the amendments... shall apply to cases pending on... the date of enactment of this Act.” Pub.L. No. 99-80, § 7(a), 99 Stat. 183, 186. This court has held that a case was pending on the date of enactment — August 5, 1985 — even if only the fee petition, but not the merits of the underlying case, awaited judicial resolution on that date. Center for Science in the Public Interest v. Regan, 802 F.2d 518, 524 & n. 10 (D.C.Cir.1986).
. Thus, even if the Supreme Court should endorse a weaker test
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
songer_appstate
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Wilbur O. MORTON, Appellant, v. UNITED STATES of America, et al., and the State of Kansas et al., Appellees.
No. 8711.
United States Court of Appeals Tenth Circuit.
Aug. 4, 1966.
Alex T. Collins, III, for appellant.
William E. Gandy, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty. for District of Colorado, David I. Shedroff, Asst. U. S. Atty. for District of Colorado, on the brief), for appellees.
Before PHILLIPS, JONES and SETH, United States Circuit Judges.
Of the Fifth Circuit, setting by designation.
PER CURIAM.
The judgment of the district court is correct and is affirmed.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_treat
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Respondent, v. Paul N. HANKISH et al., Petitioner.
Misc. No. 943.
United States Court of Appeals, Fourth Circuit.
July 10, 1972.
Robert G. Perry, Charleston, W. Va., on petition for petitioner.
John A. Field, III, U. S. Dist. Atty., and Robert King, Asst. U. S. Atty., for respondent.
Before BOREMAN and BRYAN, Senior Circuit Judges, and WINTER, Circuit Judge.
PER CURIAM :
Criminal Action No. 71-55 was instituted against Paul N. Hankish and James L. Matthews in the Southern District of West Virginia at Charleston. Robert G. Perry, an attorney of Charleston, West Virginia, appeared on behalf of defendant Hankish. The Government moved the court to disqualify Mr. Perry from representing Hankish and the matters arising on the motion were referred by Judge Sidney L. Christie of the Southern District of West Virginia to Judge Robert E. Maxwell of the Northern District of West Virginia for hearing and determination. The Government alleged that Mr. Perry had represented one Jackie Longfellow who had been convicted of a felony and who was expected to be a material witness for the Government in. the criminal action against Hankish.
After hearings, Judge Maxwell entered an order disqualifying Mr. Perry from serving as counsel for Hankish, primarily on the ground that there was a strong probability of a conflict of interest by reason of Mr. Perry’s earlier representation of Longfellow, and in an opinion and order Judge Maxwell stated:
“So, it will be the judgment of the Court here, that for the protection of all parties, the professional integrity and the integrity of the litigation, the protection of the rights of the accused; that the motion should be granted.
“The motion, however, will be stayed until the evening of January the 31st at 7:30 p. m.”
Thereafter a formal order was entered by Judge Maxwell disqualifying Mr. Perry as attorney for Hankish, the effective date being January 31, 1972. However, the disqualification order entered January 31, 1972, contained the following provisions:
“The Court is further of the opinion and does hereby advise the defendant, Paul N. Hankish, that it would appear that at least three (3) options are open to him in this matter, those being :
(1) He may employ new counsel;
(2) He may attempt an immediate appeal, if appropriate, from this order ; and/or
(3) He may execute a waiver, if such is done knowingly and voluntarily, of any conflict or possible conflict which may occur or exist insofar as Robert G. Perry .is con-cened arising from- the matters of record herein, as set forth in the record of the proceedings herein, which are hereby incorporated by reference herein. It is further
“ORDERED that, there being nothing further to be done in this District that this matter be transferred back to the Southern District of West Virginia, subject to the right of the defendant to reopen these proceedings in the event that he may desire to execute and tender such a knowing and voluntary waiver, if any, to this court.”
On March 31,1972, no further proceedings having been had in these matters, a hearing was held before Judge Christie in the Southern District of West Virginia at-which time Mr. Perry advised that he was in the process of appealing Judge Maxwell’s order and that the appeal would be filed, together with a brief, on the 12th day of April, 1972. On April 24, 1972, no proceedings having been instituted in this court, the United States Attorney directed a letter to Judge Christie and asked that a date be fixed for the arraignment of Hankish in Criminal Action No. 71-55. On the following day Mr. Perry advised the district court by telegram, a copy of which was received by the United States Attorney, that a “petition” would be presented to the Fourth Circuit on Monday, May 1, 1972. On May 1, 1972, the Clerk of this court received a “petition” praying that this court grant petitioner a full and complete hearing upon the matters arising upon the original motion of the Government for disqualification of counsel or, in the alternative, that this court hear and determine the petition upon oral argument and briefs; further that the order of the district court disqualifying counsel be reversed and that the district court be ordered to permit the continued service of Mr. Perry as petitioner’s counsel in the defense of the indictment pending in the district court in Criminal Action No. 71-55. At the same time the Clerk received a “brief” purporting to be in support of said petition.
In the proceedings before Judge Maxwell defendant Hankish, speaking for himself, stated to the court that he would be willing to waive any possible prejudice to him because of representation by Mr. Perry and later, when the case was called up before Judge Christie, Mr. Hankish personally stated to the court that if the Fourth Circuit Court of Appeals afforded no relief he would execute a waiver of possible prejudice which might develop through continued representation by Mr. Perry. It was at that time that defense counsel notified Judge Christie that he was asking this court for review and in response to interrogation by the court counsel answered,
“All that we’re doing, Judge, is by petition and a copious brief, asking the court, the Fourth Circuit to entertain an appeal to an interlocutory order and to overturn the order.
“Now, of course, I have no idea whether or not they will do that, but I would concede on the record it is hard to get them to do it.”
In response to further interrogation by the court Mr. Perry stated that this was not a certification, that it was not an appeal from a final order, and that the defendant did not have an appeal as a matter of right. In his petition and his seven-page brief there is no citation of any statute or case law as a basis for invoking this court’s jurisdiction.
An order such as the one here complained of might be held to fall within that class of orders described in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), as “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole ease is adjudicated,” and thus to be a final order appealable under 28 U.S.C. § 1291. Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 239 F.2d 555 (2 Cir. 1956), cert. denied 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38 (1957). See Fleischer v. Phillips, 264 F.2d 515 (2 Cir. 1959), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959).
If we should follow the decision in Harmar, the order in the instant case would be appealable under the rule in Cohen. However, the petitioner has filed no notice of appeal and is inexcusably out of time in attempting to prosecute an appeal under 28 U.S.C. § 1291.
We have considered the possibility that this vague application for review might be treated as a petition for a writ of mandamus under the All Writs Statute, 28 U.S.C. § 1651, and that the writ might lie thus enabling this court to review the instant order. However, this court, in its discretion, may refuse to issue the writ if a method of review has been provided by statute and the petitioner has failed to utilize it. Bartsch v. Clarke, 293 F.2d 283 (4 Cir. 1961). Assuming that Harmar Drive-In, swpra, was correctly decided and that Judge Maxwell’s order of disqualification was at one time appealable, we conclude that we should not consider the issuance of a writ of mandamus in this case for the following reasons:
1. Hankish and his counsel have been inexcusably dilatory in seeking any relief from the district court’s order and it cannot be said that he has made any effort to perfect an appeal as an appeal from a “final” order.
2. In order to issue a writ of mandamus we would be required to construe, with extreme liberality, Hankish’s request for review as a petition for the writ and we conclude that under the circumstances any such construction would be unjustifiable.
3. It has been held in numberless cases that resort may not be had to mandamus as a substitute for an appeal. For example, see Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). If a writ of mandamus were to be issued here it would clearly be a substitute for an appeal, the right to such appeal having been neither asserted nor pursued.
4. The Second and Ninth Circuits have held that review of an order denying a motion to disqualify could be had by way of an interlocutory appeal under 28 U.S.C. § 1292(b). Marco v. Dulles, 268 F.2d 192 (2 Cir. 1959); Cord v. Smith, 338 F.2d 516 (9 Cir. 1964). In Cord, the Ninth Circuit held that the order refusing disqualification was not appealable under the Cohen rule and was appealable pursuant to § 1292(b). Since there had been no certification under § 1292(b) the court concluded by granting mandamus to review the question. We have found no authority clearly supporting the issuance of a writ of mandamus to review an order granting a motion to disqualify. We do not view the decision in Cord, supra, as such authority. For a discussion of the subject of appealability see 9 Moore’s Federal Practice j[ 110.13 [10],
5. The issuance of a writ of mandamus here would appear to be on less than firm ground when Hankish has been informed by the district court that he ■might be represented by his employed counsel if he would waive objections to any conflict of interest on his counsel’s part and any prejudice to himself that might develop therefrom at trial. Han-kish was personally present during all of the proceedings before Judge Maxwell and Judge Christie. It was vigorously contended that motion for disqualification of counsel was without evidentiary support because there was no showing of possible conflict of interest on the part of counsel and there was no possibility that any prejudice to Hankish could develop because of Mr. Perry’s earlier representation of Longfellow. In light of these contentions that no prejudice could possibly arise it would appear that Hankish has conceded that a waiver of prejudice from continued representation by Mr. Perry would not be harmful.
If we were to adopt the view that Harmar Drive-In was incorrectly decided and that the order here complained of was not appealable under 28 U.S.C. § 1291, we conclude that the issuance of a writ of mandamus would still appear to be inappropriate and unjustified. Mandamus will ordinarily lie only when the district court has clearly abused its discretion or when the petitioner can establish a clear and certain right and that the duties of the court were basically ministerial. Such factors are lacking here. The petitioner can have the benefit of counsel of his own choice by executing a waiver of possible prejudice, which waiver, according to petitioner’s own avowals, would be harmless.
Under the circumstances here, we decline to take jurisdiction of the matters presented in connection with the petition of defendant Hankish. It is so ordered.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_othjury
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?" 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".
Stephen Luther EVANS, Appellant, v. UNITED STATES of America.
No. 18478.
United States Court of Appeals, Third Circuit.
Submitted on Briefs Oct. 5, 1970.
Decided Dec. 14, 1970.
Stephen L. Evans, pro se.
Louis C. Bechtle, U. S. Atty., Philadelphia, Pa. (Richard R. Galli, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for -appellee.
Before HASTIE, Chief Judge, and STALEY and GIBBONS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
This appeal has been taken from a district court’s dismissal without hearing of a federal prisoner’s motion under 28 U.S. C. § 2255, collaterally attacking his conviction of robbery.
In an attempt to show racial discrimination in jury selection the movant, a Negro, has asserted that only one member of his race was among the 12 petit jurors and 2 alternates who tried him and that there were only 2 Negroes among the group of prospective jurors from which the trial jury was selected. We agree with the district court that the allegations and proffered showing on the issue of racial discrimination in jury selection are inadequate.
The appellant also says that the district court committed reversible error in refusing to treat a letter received from him while this proceeding was pending as an enlarging amendment of his motion. However, that letter merely asked the court to reconsider its denial of an earlier petition. Neither the substance nor the form of the communication was such as to oblige the court to review its earlier decision in this proceeding.
The judgment will be affirmed.
Question: Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. 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.
UNITED STATES of America, Appellee, v. Edwin MURRAY, Appellant.
No. 37, Docket 26741.
United States Court of Appeals Second Circuit.
Argued Sept. 27, 1961.
Decided Jan. 10, 1962.
Certiorari Denied March 26, 1962.
See 82 S.Ct. 845.
Louis Bender, New York City, for appellant.
Edward Brodsky, Asst. U. S. Atty., Southern Dist. of New York, New York City (Robert M. Morgenthau, U. S. Atty., and Arthur I. Rosett, Asst. U. S. Atty., New York City, on the brief), for appellee.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
LUMBARD, Chief Judge.
Edwin Murray appeals from his conviction on two counts of income tax evasion for the years 1952 and 1953 in violation of § 145(b) of the Internal Revenue Code of 1939. He was charged with reporting net income of only $6,-504.45 and $4,038.09 for 1952 and 1953 respectively, whereas his net income for those two years calculated from increases in his net worth was allegedly $24,017.-60 and $19,838.82, respectively. The government claimed that the difference in net income came from gambling activities; the defense was that the apparent increases in net worth came from a loan of $32,000 by one John Lamb. Murray was sentenced to imprisonment for one year and one day on each count, the sentences to run concurrently, and was fined a total of $5,000.
Murray’s appeal alleges that the government’s evidence was insufficient to take the question of his guilt to the jury, that there were errors in the admission and exclusion of evidence, and that the trial judge erred in permitting the government to contradict its bill of particulars in summation. He also claims error in the denial of his pretrial demand for inspection of the transcripts of statements given by him to the Intelligence Division of the Internal Revenue Service. We affirm the conviction.
I. The Sufficiency of the Evidence
Murray attacks Judge Dawson’s denial of his motion for acquittal at the close of all the evidence, claiming that the government did not adduce sufficient proof to permit the jury to find beyond a reasonable doubt that the essential element in the alleged increase in net worth —the purchase and remodeling of a house in New Rochelle, New York, for a total of approximately $32,000 — was not explained by the loan claimed to have been made by John Lamb. Murray does not attack the government’s marshalling of evidence in other respects, and we see no reason to raise any other question as to its sufficiency.
The evidence supports the inference that Murray’s gambling operations in 1952 and 1953 were “capable of producing much more income than was reported and in a quantity sufficient to account for the net worth increases.” Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). And no attack is made upon the proposition that if the $32,000 expenditure was made out of income during the two tax years under consideration the statute was violated. Thus the question before us is whether the government satisfied its burden of producing sufficient evidence for the jury to find beyond a reasonable doubt, as Judge Dawson properly charged, “that the expenditure was not financed by a loan from John Lamb.” We hold that on this question “taking the evidence in the view most favorable to the government, there is substantial evidence to support the verdict.” United States v. Tutino, 269 F.2d 488, 490, (2 Cir. 1959).
The government’s disproof of Murray’s claim that the New Rochelle house was purchased and remodeled with funds lent him by John Lamb consisted largely of testimony tending to show that at the time of Lamb’s death in 1955 and prior thereto he was in such financial straits that it was highly unlikely that during the period in question he had the resources to lend anyone $32,000. Murray, in his last statement to the Internal Revenue Service, had said that he had paid off his debt to Lamb in 1954 or 1955; the government’s evidence as to Lamb’s financial condition also supported an inference that during those years Lamb had not received such repayment.
The government adduced testimony that John Lamb, who was a member of Father Divine’s Mission in Harlem, lived in a Mission residence for a number of months prior to his death. Sunshine Bright, a housekeeper for the Mission, testified that on a number of occasions Lamb’s checks in payment of his rent of four dollars a week were returned because of insufficient funds; she further testified that Lamb had been dispossessed from his real estate office for nonpayment of rent. A friend of Lamb’s, Rev. William Aaron, testified that between 1953 and 1955 he had on several occasions lent Lamb small amounts of money which had never been repaid, and that during the same period, while Lamb was living in Lamb’s office, he had without payment provided Lamb with food and a blanket. In addition, there was evidence that on his entry into Harlem Hospital in 1955 Lamb had said that he had no income and no bank account. The only significant evidence that Lamb had any money was the statement of an Internal Revenue agent that Lamb’s account at the Manufacturers Trust Company contained an average balance of five or six hundred dollars, but this falls far short of any likelihood that Lamb ever had $32,000 to lend to Murray. Cf. United States v. Sclafani, 265 F.2d 408, 411-412 (2 Cir.), cert. denied 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959); United States v. Adonis, 221 F.2d 717, 720 (3 Cir.1955).
Murray did not take the stand at the trial, but the government read into evidence excerpts from several pretrial statements which he made to the Internal Revenue agents who investigated his case. His conflicting versions of the source of the money used to buy and repair the house further strengthen the government’s case. On June 30, 1956 he stated that the transactions had been financed with accumulated savings; on January 3, 1957 he said that his savings had been supplemented with a loan of $12,000 from gambling friends whom he would not identify; on April 23, 1958 he said that $13,000 to $15,000 had come from Lamb; finally on May 28, 1958 he claimed — as did his counsel at trial— that the entire expenditure of $32,000 was financed by a loan of that amount from Lamb. There was no documentary evidence of such a loan.
Murray supported his defense with the testimony of the broker handling the sale of the house that at the closing Lamb had been present and had $20,000 to $22,000 in cash with him which he turned over to the seller; the broker also testified, without objection from the government, that later he had heard that Murray had borrowed the money from Lamb. Seymour Waterman, in whose name title to the house was taken and who was president of the holding company (wholly owned by Murray) to which it was subsequently transferred, also testified, again without objection, that Murray had told him that he was going to borrow money from Lamb to finance the house. This, together with the testimony of Mabel Hope to be considered below, constituted Murray’s defense. We hold that there was ample basis for the jury’s rejection of the defendant’s explanation.
II. Objections to the Admissibility of Evidence
A. Testimony of Mabel Hope — To bolster its contention that the New Rochelle house had been financed by John Lamb, the defense called a Mrs. Mabel Hope, who testified that she had “followed” the Father Divine Mission, knew “Brother” Lamb well, and shortly after 1940 had borrowed $2,000 from him without any documents, to buy a house. She further stated that Lamb had told her “that Murray was a very nice fellow and he felt if [sic] he was his own son, and * * * he would help him in something. He said he would help him to do some kind of business. That is as much as he told me.” This, together with Mrs. Hope’s opinion that Lamb was “a wealthy man,” does not, as we have indicated, detract materially from the substantiality of the evidence supporting the verdict, especially in the light of the fact that Mrs. Hope did not state when it was that Lamb professed his disposition to aid Murray.
More specific attack is made upon the refusal of Judge Dawson to allow Mrs. Hope to answer defense counsel’s question, “Did he indicate that he ever lent Ed Murray money?” We agree with Judge Dawson that any answer to this question would have been inadmissible hearsay. Obviously appellant’s contention that this testimony should have been allowed because certain of the government’s evidence was allegedly hearsay as well is unpersuasive. Nor do we see any force in the argument that Mrs. Hope’s testimony should have been admitted under the hearsay exception relating to statements reflecting the state of mind of the declarant, United States v. Annunziato, 293 F.2d 373, 378 (2 Cir. 1961), cert. den. 82 S.Ct. 240; 6 Wig-more, Evidence §§ 1725-31 (3d Ed. 1959). Clearly a statement by Lamb that he had on prior occasions lent money to the defendant, or even a statement that on this occasion he had lent him the $32,-000 in question (the time reference of the question to Mrs. Hope being unclear) would tend primarily to show not Lamb’s intention or state of mind toward Murray as he spoke but whether or not a loan had actually been made. Thus the out-of-court statement was offered for the forbidden purpose of proving the truth of its contents, and does not come within this or any other exception to the hearsay rule. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); McCormick, Evidence, § 271 (1954).
B. Testimony of Lillian Smith —Lillian Smith, who was called by the government, testified on a variety of matters. She was secretary-treasurer of the holding company which held nominal title in the New Rochelle house, but her testimony about the payment at the closing of the sale (at which she was present) was totally inconclusive. She further testified that, “a few months before” the purchase of the house she had seen Murray with two shopping bags full of money, and that he had gotten the money “from gambling. He hit a number.” On cross-examination, however, she wavered as to the time when she had seen the money, admitting that it might have been as much as four years before the purchase of the house, and further said that she had no knowledge of the source of the money used to pay for the house or whether Murray had engaged in gambling since “years and years ago.” On redirect, Miss Smith testified that she had once done housework for Murray, but denied any other employment connection with him. At that point, over the defense’s objections, the government attorney confronted her with a prior statement signed by her to the effect that at one time she had been a numbers runner for Murray; in the statement dates were not established, but Miss Smith did say that she had not been a runner between 1953 and 1956. The judge permitted the use of the statement on the ground of surprise; Miss Smith denied its accuracy.
The appellant attacks the government’s use of Miss Smith’s prior inconsistent statement to impeach its own witness. We find no error. We agree with the trial judge that it was proper for the government to make use of a prior inconsistent statement of its own witness when she reversed herself on the question whether she had ever worked for Murray as a numbers runner. The implication of the prior statement that she had been a runner, but not in the years 1953 through 1956, might well be that she had been a runner in 1952, the first tax year in question, and thus that at that time Murray had been in the policy business. It was obviously material whether or not Murray was at that time in the policy business, and the government’s case was harmed by Miss Smith’s surprising answer.
The fact that the statement was used to cast doubt upon Miss Smith’s negative testimony, and thus to build the government’s case rather than merely to tear down testimony actually harmful to it does not make it any less admissible. We passed upon a similar situation in Di-Carlo v. United States, 6 F.2d 364 (2 Cir.), cert. denied 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925). In that case, in admitting a prior inconsistent statement when a witness testified that she had been unable to identify her assailants as the defendants, we said:
“The latitude to be allowed in the examination of a witness, who has been called and proves recalcitrant, is wholly within the discretion of the trial judge * * * The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the -stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.” Id., 6 F.2d at 368.
See United States v. Allied Stevedoring Corp., 241 F.2d 925 (2 Cir.), cert. denied 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957).
This is not, like United States v. Block, 88 F.2d 618 (2 Cir.), cert. denied 301 U.S. 690, 57 S.Ct. 793, 81 L.Ed. 1347 (1937), a case of an attempt to introduce an entire series of extrajudicial questions and answers when a witness refuses entirely to testify about matters on which he has previously been voluble. Rather, here the presentation was giving the jury an opportunity to determine the truth of Miss Smith’s negative response to a single question by noting her prior inconsistent answer and observing her attempt to reconcile her previous statement with what she now claimed to be the truth. Thus the jury was to draw its conclusion not from the out-of-court statement, but rather from the witness’ in-eourt conduct when confronted with it. So considered, the statement was not hearsay.
Murray also claims that it was error for the trial judge to permit the government to begin its examination of Miss Smith by asking her about her criminal record. She testified that she had been convicted for policy dealings in 1942, 1943, 1956 and 1959, and that in 1939 she had been convicted of violating the election law. Murray’s counsel objected to the relevancy of the testimony, and on two occasions moved for a mistrial. He claims that it was improper to ask questions pertaining to credibility before Miss Smith had given any other testimony, that the convictions brought out were incompetent to reflect on credibility since they were only for misdemeanors not involving moral turpitude, and that Murray was unduly prejudiced by the possible inference from his close connection with Miss Smith that he also had engaged in policy dealings.
The last claim of prejudice is without merit in view of Judge Dawson’s meticulous corrective instructions. He asked Miss Smith explicitly whether her convictions had been in connection with any work she had done for Murray, and her answer was negative. He then went on to say “The jury will realize the fact that she has been convicted is not any indication that Mr. Murray had anything to do with the policy racket,” and he stated that the testimony as to the conviction was to be considered only with relation to her credibility.
We find it unnecessary to consider whether it was error under the circumstances to permit the government to go into the credibility of its own witness in this way at the very outset of her testimony. As this case evolved there was no possibility of any prejudice to Murray from any attack on Miss Smith’s credibility. She gave no affirmative testimony which was in any way helpful to Murray, and in fact Murray’s counsel felt it desirable to argue in his summation that her testimony should not be believed. Thus Murray was more helped than harmed by any attack on her credibility, whatever the government's original motivation may have been.
C. Admission of Books and Records —At the trial, the government asked Murray’s counsel “to produce the books and records of a corporation known as 561-563 West 144th Street Realty, Inc.” On the previous day, the trial judge (off the record and thus apparently out of the hearing of the jury) had advised counsel that unless the books and records were turned over to the prosecution voluntarily, a subpoena would be issued. In court, defense counsel stated to the trial judge that “I have them here, and if you direct me to turn them over, I will.” When the judge responded “Yes,” the papers were made available to the prosecution without any objection or restriction. When, however, during its examination of a former employee of Murray’s accountant, the prosecution attempted to introduce them into evidence, the defense objected to the admission of some of them on the ground of the privilege against self-incrimination in that the books and records also contained personal records of the defendant.
Murray claims error in the trial judge’s failure to give a requested corrective instruction after the government had asked for the records in the presence of the jury. No such instruction was needed, since there was nothing prejudicial in the wording of the request, as quoted in the preceding paragraph. No privilege attached to the corporate rec-ords requested; this is not, like People v. Minkowitz, 220 N.Y. 399, 115 N.E. 987 (1917), a case where the prosecution attempted to prejudice the defendant by making known to the jury the existence of inadmissible personal records,
Nor was the fact that before trial judge Weinfeld had denied the government’s motion for inspection of these doc-umen^s of any relevance. The grounds for the denial had nothing to do with'the admissibility of the documents at trial; Judge Weinfeld merely held that uhe gov-ernment had shown insufficient need to liave them before trial.
Finally, we hold that defend-ant’s objection to the admission of the books in evidence was both too late and n°t in the proper form. The privilege against self-incrimination does not pro-hibit the introduction of incriminating matter in evidence; it merely forbids if to be obtained from the defendant. See Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913). The time for the defense to ob-ject on the grounds that the records were personally incriminating was before they were turned over to the prosecution, not when the prosecution later attempted to use them in the actual examination of the accountant. Moreover, the defense had a right to withhold only those rec-ords which were personal. The rights of the defendant could have been amply protected if the defense had offered to the government only those parts pertaining to the corporation and had withheld the rest. In any event, the government made no use of the parts of the books pertain-ing to Murray’s personal affairs, and there is no indication that there was in them any matter prejudicial to him.
III. Contradiction of the Government’s Bill of Particulars in Its Summation
Appellant also claims error in the trial court’s permitting the government to argue in its summation that there was no evidence supporting exemptions for three dependents when it had stated in its bill of particulars and in the testimony of the investigating Internal Revenue agent that for purposes of calculating Murray’s taxable income on the net worth theory it had allowed three exemptions. Murray’s counsel argued in his summation that lack of willfulness could be inferred from the fact that in the allegedly fraudulent returns Murray had not attempted to take exemptions for his three children. The government countered with the argument that there was no evidence in the record to show that Murray qualified for the exemptions by actually supporting the children. The trial judge rejected a request that he charge the jury that the government had actually allowed the exemptions, saying “I am not in my charge going to go into minutiae of the case.”
Appellant’s argument rests on the proposition that a bill of particulars binds the government for all purposes in the case in which it is given. The function of a bill of particulars is to enable the accused to prepare for trial and to prevent surprise, and to this end the government is strictly limited to proving what it has set forth in it. See, e. g., United States v. Neff, 212 F.2d 297, 309 (3 Cir.1954). But saying that the government’s case is limited to what it has specified is not the same as saying that for all purposes statements in a bill of particulars are evidence in the case. The bill of particulars merely stated that in arriving at the amount of taxable income alleged in the indictment it had allowed the defendant “four exemptions in each of the years contained in the indictment — one exemption for himself and three for his children.” It was not an admission that such exemptions were actually allowable. See United States v. Nunan, 236 F.2d 576, 588 (2 Cir.1956), cert. denied 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957). It was nothing more than a decision not to contest the propriety of the three exemptions which Murray might claim.
The bill of particulars is not evidence of itself; it is merely a statement of what the government will or will not claim. Thus the record was barren of evidence as to whether Murray supported his three children. Of course the defendant could have sought a concession on this from the government or could have adduced proof of it. As it was, Murray’s counsel chose to make the argument despite the fact that the record contained nothing to support it. Under these circumstances it was entirely proper for the government to argue, in answer to the summation of Murray’s counsel, that there was no proof in the record that he was entitled to the exemptions.
IV. Pretrial Inspection of Murray’s Statements to the Internal Revenue Service
The final point for our consideration is the assignment of error in Judge Edelstein’s denial of the defense’s pretrial motion for inspection of the transcripts of Murray’s several voluntary interviews with agents of the Internal Revenue Service. The motion was based alternatively on Rules 16 and 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and Section 6(b) of the Administrative Procedure Act, 5 U.S.C.A. § 1005(b). Judge Edelstein held that the defense had made insufficient showing of the “materiality” required for discovery under Rule 16, that pretrial inspection pursuant to subpoena was unavailable under Rule 17(c) because it had not been shown that the statements were “evidentiary and relevant,” and that Section 6(b) of the Administrative Procedure Act was inapplicable because the statements had not been “compelled” by the Revenue Service. Because of the division among the district judges of this circuit as to pretrial inspection of a defendant’s own statements, we shall elaborate the reasons for our affirmance of Judge E delstein’s denial of the motion.
A. Rule 16 — We hold that a transcription of a question and answer examination of one who later becomes a defendant in a criminal action is not discoverable by him under Rule 16 as within the category of “books, papers, documents or tangible objects, obtained from or belonging to the defendant.” The language of Rule 16, its evolution in the Advisory Committee, see United States v. Peltz, 18 F.R.D. 394 (S.D.N.Y.1955), and the Committee’s final explanatory Note all indicate that Rule 16 applies only to books, papers, documents or tangible objects in which a defendant has had some prior proprietary or possessory interest. The great weight of authority supports our unwillingness to stretch the word “belonging” to the point of saying that a stenographic transcript of a defendant’s words “belongs” to him. See Shores v. United States, 174 F.2d 838, 11 A.L.R.2d 635 (8 Cir.1949); Schaffer v. United States, 221 F.2d 17 (5 Cir.1955); Kaufman, Criminal Discovery and Inspection of Defendant’s Own Statements in the Federal Courts, 57 Colum.L.Rev. 1113, 1114 (1957); Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 1053 (1961). Although Murray’s Q-and-A statements were not signed, we can see no reason why a signed statement would any more have “belonged” to him within the meaning of the rule.
Although on this analysis, it is unnecessary for us to pass upon the assertion in the district judge’s order that the statements were not “material” to the preparation of Murray’s defense, it would seem to us that the statements were material.
B. Administrative Procedure Act § 6(b) — We agree with Judge Edelstein that Section 6(b) is inapplicable to the statements Murray voluntarily made to the Internal Revenue Service. By its terms Section 6(b) applies only to persons “compelled to submit data or evidence,” and Murray’s appearances were not pursuant to summons issued under •§ 7602 of the Internal Revenue Code of 1954, but rather were made of his own volition. Thus the case before us is distinguishable from Backer v. Commissioner, 275 F.2d 141 (5 Cir.1960) and United States v. Smith, 87 F.Supp. 293 (D.Conn.1949), which held § 6(a) applicable to insure representation by counsel in a hearing held pursuant to a subpoena.
C. Rule 17(c) — Although a Rule 17(c) subpoena might under some ■circumstances be used to compel the gov■ernment to produce the transcript of a defendant’s statement for his use as evidence, Murray gave no reason which •would have justified Judge Edelstein in ■exercising his discretion to require the government to produce his statements for inspection before the trial.
“Rule 17(c) was not intended to provide an additional means of discovery,” Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). Its purpose is rather that of the traditional subpoena duces tecum, to permit a party to obtain “books, papers, documents or other objects” for use by him as evidence. The provision for pretrial inspection is merely a subsidiary one, “to expedite the trial by providing a time .and place before trial for the inspection of the subpoenaed materials.” Id. at 220, 71 S.Ct. at 679; see Kaufman, supra, at 1116; Note, 67 Harv.L.Rev. 492, 496-97 (1954). We cannot agree with the implication in Fryer v. United States, 93 U.S.App.D.C. 34, 207 F.2d 134, cert. denied 346 U.S. 885, 74 S.Ct. 135, 98 L.Ed. 389 (1953), that the mere likelihood that the government will use a defendant’s statement as evidence (as Murray’s statements were in fact used at trial) makes them “evidentiary” within the meaning of Rule 17(c) as interpreted by the Supreme Court in Bowman. If Rule 17(c) is interpreted to allow the defense to inspect any matter in the government’s hands which might be used by it as evidence, we see little meaning left in the court’s clear statement in Bowman that it is not an additional discovery device. Rather, we interpret Bowman as saying that Rule 17(c) is a device solely for the obtaining of evidence for the use of the moving party, permitting him to examine the material obtained before trial only where, in the discretion of the court, it is necessary that he do so in order to make use of the material as evidence.
The only apparent evidentiary use to which a defendant could put his own statement would be to impeach the testimony of a government witness about its contents or, perhaps, to bolster his own testimony by showing its consistency with the prior statement in the event that the government introduced evidence of some other inconsistent statement. To be sure, we see no reason why after the government introduces such testimony at trial a defendant could not use Rule 17 (c) to subpoena his prior statement for his own use. Cf. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Although Jencks eliminated any requirement of a prior foundation of inconsistency (in the case of third-party witnesses), the Supreme Court did not say that it was not necessary for the defendant to show some fairly immediate evidentiary need for the statements he sought, and it reaffirmed that it was not permitting a fishing expedition in the manner of discovery. We cannot say that there may never be a situation where it would be appropriate to allow a defendant to examine his own statement before trial. Here, however, Murray had made no showing of such special need. Murray had counsel with him at each interview and it is hardly to be supposed that he and his counsel were without any notes of what had happened and without any memory of what was said. Under ordinary circumstances, such as these, we see no reason why there should not be sufficient time for defense counsel to make whatever impeaching or bolstering use of a statement he can if he obtains the transcript at trial. Murray has made no showing that he was in any way prejudiced by reason of not having had his statements made available to him before trial.
Affirmed.
. Section 145(b), Internal Revenue Code of 1939.
“Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.”
. In any event, Murray waived any objection to the use of misdemeanor convictions to reflect on credibility by his failure to raise tlie point specifically at trial. He should not be permitted to raise on appeal a new point which he did not give the trial judge an opportunity to pass upon. See, e. g., United States v. Sansone, 231 F.2d 887, 891 (2 Cir.), cert. denied 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). Timely objection was especially necessary here because it is not clear on the record what the nature of the convictions was. If, as is likely, they were in fact only for. misdemeanors (the policy violations prob-ably having been under New York Penal Law, McKinney’s Consol.Laws, c. 40, § 974 and the election violation probably under New York Penal Law, § 757(2)) it would have been error to permit their use for impeachment purposes over prop-er objection. See United States v. Pro-voo, 215 F.2d 531, 536 (2 Cir. 1954).
. Rule 16, Federal Rules of Criminal Procedure.
“Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.”
. Rule 17(c), Federal Rules of Criminal Procedure.
“A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein * * * The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.”
. Section 6(b), Administrative Procedure Act, 5 U.S.C. § 1005(b).
“Issuance of process; investigations; transcript of evidence. * * * Every person compelled to submit data or evidence shall be entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that, in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.”
. Compare, e. g., United States v. Peace, 16 F.R.D. 423 (S.D.N.Y.1954) (allowing inspection under Rule 16) with, e. g., United States v. Peltz, 18 F.R.D. 394 (S.D.N.Y.1955), (denying inspection under both Rule 16 and Rule 17 (c)). For a recent thorough collection of the cases, both within this circuit and elsewhere, see United States v. Fancher, 195 F.Supp. 448 (D.Conn.1961).
. The Note states that the rule is a “restatement” of the procedure whereby the 'courts had “made orders granting to the defendant an opportunity to inspect impounded documents belonging to him. * * * ” It would be strange to speak of “impounding” a transcript, signed or unsigned, which had never been in a defendant’s possession.
. Judge Kaufman’s article suggests the situation where the preparation of a defense of insanity might require inspection of the transcript of a psychiatric examination. Kaufman, supra, at 1120.
Judge Kaufman also discusses tlie possibility, raised in Shores v. United States, 174 F.2d 838, 845, 11 A.L.R.2d 635 (8 Cir. 1949), of an inherent judicial power to allow discovery, in cases of need. where it is not explicitly provided for in the rules. He concludes that “the courts remain free to direct discovery under their inherent authority to administer justice in federal courts.” Kaufman, supra, at 1121. We need not here consider whether such power exists, since the facts of this case fall far short of showing any earlier need for the statements.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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).
RIDDLE v. SOUTHERN RY. CO. et al.
No. 4566.
Circuit Court of Appeals, Fourth Circuit.
Aug. 30, 1940.
Edwin S. Hartshorn, of Asheville, N. C. (Francis J. Heazel, George. A. Shuford, Heazel, Shuford & Hartshorn, and William A. Sullivan, all of Asheville, N. C., on the brief), for appellant.
G. Lyle Jones, of Asheville, N. C. (W. T. Joyner, of Raleigh, N. C., and George H. Ward, G. L. Jones, Jr., and Jones, Ward & Jones, all of Asheville, N. C., on the brief), for appellees.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
This was a civil action instituted by the plaintiff, as administratrix of her deceased husband, Clyde Riddle (hereinafter called Riddle), against the Southern Railway Company and certain other defendants, to recover damages for the alleged wrongful death of Riddle, the plaintiff's intestate. The action, originally instituted in a state court of North Carolina, was duly removed by the defendants to the United States District Court for the Western District of North Carolina.
During the trial, the form of the issues to be submitted to the jury was agreed upon, ' and was approved by the court. The second • of these issues was: “Did the plaintiff’s intestate, Clyde Riddle, by his own negligence, contribute to his injury and death, as alleged in the answer?” At the close of all the evidence, Judge Webb directed the jury to answer this second question in the affirmative. The jury, in obedience to the peremptory instruction, answered the second issue “Yes”. Judgment was thereupon entered against the plaintiff and in favor of the defendants. Plaintiff-appellant, after due objections and exceptions to the rulings and judgment of the District Court, appealed to this court.
For the purpose of this appeal, plaintiff-appellant raises four separate questions. These four questions, however, are closely interrelated, and we are called on to decide only one question: was Judge Webb correct in deciding that the plaintiff’s intestate was guilty of contributory negligence, as a matter of law? We believe Judge Webb’s ruling was correct.
This statement of the salient facts in the case is taken from- the brief of appellant (pp. 3 and 4):
“Plaintiff’s intestate, Clyde Riddle, 27 years of age, was driving an automobile truck in connection with a highway construction job near Enka, Buncombe County, North Carolina, on December 17, 1936. The highway under construction, (U. S. No. 23), is parallel to and North of the main track of the Murphy Division of the defendant, Southern Railway Company, and both run approximately East and West. Just South of the main track and parallel to it is a side track. The North rail of the side track is 8.3 feet south of the South rail of the main track. A ‘Loading Road’ is about 4 feet South of the South rail of the side track. Another road crosses the side track and main track and extends North to U. S. No. 23.
“Two box cars were parked on the side track just West of this cross-road. These two box cars extended about 85 feet along the side track. The Northern side of the box cars was 5.8 feet South of the Southern rail of the main track. Box cars are from 9-1/4 to 10-1/4 feet wide and 13.6 feet high.
“Riddle had loaded his truck with cement from the Western-most box car, backed to the cross-road and was proceeding North on the cross-road. When the cab of his truck cleared the Northern edge of the box cars, he looked both ways, saw that a passenger train travelling East was about to strike his truck (the front end of which was already on the main track), and threw up his hands, and the train struck his truck, knocking it sonic 40 feet down the track, and fatally injuring Riddle. The rear end of the train was some 300 feet past the crossing when the train stopped. * * * There was considerable noise caused by the trucks in the neighborhood of the crossing.
“The track was straight for perhaps half a mile or more West of the crossing, and is on top of the ground for about 677 to 777 feet to the West of the crossing. West of that it is in a cut for some distance. There are bushes and trees South of the track, about 477 feet West of the crossing.
“The highway construction work, unloading of materials from cars on this siding, and hauling same across the tracks to the highway under construction, with trucks crossing the tracks almost continuously during daytime when work was in progress, had been going on for several weeks before the collision.
“The train was operated by the defendant Southern Railway Company, and the individual defendants were the train crew, (engineer, fireman, conductor). The engineer operates the locomotive seated on the right side thereof.”
For the purposes of this opinion, it may be conceded that there was negligence on the part of the defendant. The facts of the case, however, show very clearly that no recovery in favor of the plaintiff could possibly be predicated hereupon the doctrine of last clear chance.
Plaintiff-appellant relies very heavily upon the opinion of Mr. Justice Cardozo in the well-known case of Pokora v. Wabash Railway Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. We have no quarrel with the opinion in that case, in which it was held that the plaintiff was not guilty of contributory negligence as a matter of law. We think, though, that the facts in the instant case can very clearly be distinguished from those in the Pokora case.
In the Pokora case, Pokora was driving his truck across a railway grade crossing in the populous city of Springfield, Illinois. There were a large number of railroad tracks, also switches, along the street on which the accident happened. Before entering the street intersection, Pokora had stopped his truck and, before proceeding, he looked for trains, but a string of box cars cut off his view. He listened but heard nothing, neither bell nor whistle. Still listening, he drove across the switch, and was struck by a train coming at an unlawful speed.
In the instant case, there was no evidence whatever to show that Riddle gave even one thought to, or took a single precaution for, his own safety. Apparently, he was quite willing to take a terrible chance. Tragically, it broke against him. After his truck (then facing west) was loaded, he backed first east on the loading-road and then south on the cross-road. The evidence seems to indicate that Riddle then stopped his truck on the cross-road about 30 feet south of the track on which the accident happened. It is a fair inference from the evidence, too, that at this spot there was an appreciable space to the West of the box cars (the direction from which the train was approaching) where the view is unobstructed. He did not then look for a possible approaching train and it is important that, in the statement of facts quoted above from the appellant’s own brief, no mention is made of Riddle’s either looking or listening until the front end of his truck w;as already on the main track of the Southern, when, according to this same statement, (appellant’s ' brief, p. 4) he “threw up his hands and the train struck his truck”.
The evidence showed clearly that many other persons in the neighborhood of the accident both saw and heard the approaching train. Some of these made rather frantic efforts by shouting and waving at Riddle to prevent him from driving his truck in front of the train; but, so the evidence shows, Riddle did not either hear the shouting or see the waving, so he drove his truck on the track, right in the path of the oncoming train. It is not without importance that Riddle (a truck driver in the employ of the road contractor, Strider & Company) was thoroughly familiar with the conditions existing around the place of the accident and the evidence goes even further to show that he must have known the schedule of passenger trains on this Murphy division of the Southern Railway.
We agree with the Pokora case that the law does not, under all circumstances, impose the duty upon a truck driver, upon crossing a railway track with his truck, to get down off his truck, go to the front of the truck and look and listen for trains which might possibly be approaching. It should be noted, however, that Pokora did stop his truck once, did look and listen, and that he was still listening while he was driving his truck across the railroad tracks.
The road in which Riddle was driving his truck when the accident happened was not a city street, as in the Pokora case; nor was it even an important road. It was an unimportant country road which came to a dead-end at a very short distance south of the track on which the train in question was running.
In the Pokora case, Justice Cardozo learnedly discussed at some length the varying rules laid down by different courts as to the duty of one crossing a railway track, to stop, look and listen. Then he said (292 U.S. 104, 54 S.Ct. 582, 78 L.Ed. 1149, 91 A.L.R. 1049): “Choice between these diversities of doctrine is unnecessary for the decision of the case at hand.” The quoted sentence, we believe, is peculiarly applicable to the Riddle case. We believe, though, that our decision here is quite consistent with the Pokora case; is in line with the decisions on this subject by the highest court of North Carolina, Harrison v. North Carolina Railroad, 194 N.C. 656, 140 S.E. 598; and also squares with the decisions of our own court on this point, McNabb v. Virginian Ry., 55 F.2d 137, Calloway v. Pennsylvania Ry. Co. 62 F.2d 27.
We are not unmindful of the fact that the plaintiff’s intestate is guilty of contributory negligence as a matter of law, if, and only if, that is the only reasonable and legitimate inference which can be drawn from the evidence, when that evidence is taken in the 'light most favorable to the plaintiff’s intestate. Any fair-minded person, we believe, upon an impartial consideration of the uncontradicted testimony here, must reach but one conclusion. To the question contained in the second issue: “Did plaintiff’s intestate, Clyde Riddle, by his own negligence, contribute to his injury and death, as alleged in the answer?” there can be, in our opinion, but one reasonable answer — in the affirmative.
For the reasons stated above, we affirm the judgment of the District Court
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_casetyp1_7-3-4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities".
B. B. WOODSON, Trustee, Appellant, v. Bernard P. CHAMBERLAIN, Appellee. In the Matter of Sterling R. DECKER.
No. 9028.
United States Court of Appeals Fourth Circuit.
Argued Jan. 23, 1963.
Decided May 20, 1963.
Bernard P. Chamberlain, pro se, in support of motion.
William S. Aaron, Jr., Charlottesville, Va., in opposition to motion.
Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
The appellee has moved to docket and dismiss the appeal upon the grounds of complete compliance by the appellant with the judgment below and of an asserted estoppel in pais. We deny the motion.
The appellee, Bernard P. Chamberlain, had sold to the bankrupt, Dr. Sterling Decker, a tract of land for $30,000. Payment of the purchase price was secured in part by bonds, one of which in the face amount of $5,000 is in issue. On this bond, there is recorded an agreement between Chamberlain and Decker that if certain developmental work contemplated by Decker on the land should cost more than $20,000, one-half of the excess should be a credit on the bond. Since this agreement made the ultimate purchase price uncertain, the ten per cent real estate commission could not be finally computed and $500 was deposited in escrow for the purpose of securing payment to the real estate agent of ten per cent of whatever amount ultimately proved to be payable upon the bond. Since the maximum credit could not exceed $5,000 and the maximum reduction of the real estate commission could not exceed the $500 placed in escrow, the remainder of the real estate commission was paid at the time of closing. Chamberlain had a contingent interest in the escrowed funds to the extent that they proved to be in excess of the ultimate amount determined to be due the real estate agent.
The contemplated development of the tract of land was never performed. Decker became interested in another development and subsequently appears to have abandoned this one altogether. Thereafter, he became insolvent and was declared a bankrupt.
In the bankruptcy proceedings Chamberlain filed as a secured creditor upon the $5,000 bond remaining unpaid and which contained the special agreement for the credit in the event the developmental costs exceeded $20,000. The land was sold free of the bond’s lien and the Trustee had funds with which to pay Chamberlain’s preferred claim. The Trustee resisted the claim, however, for, under the special agreement, he contended he was entitled to a credit of' $5,000, the face amount of the bond. He did this on the basis that the developmental work on the land had never been done, but a current estimate of the cost of such work if then undertaken exceeded $30,000.
The Referee found that the Trustee was entitled to the credit he claimed, but the District Judge disagreed, holding that the credit was allowable only if the developmental work had actually been performed with incidental advantage to other lands owned by Chamberlain, and that the credit could not be claimed on a current estimate of the cost of work which had not been done and which now is clearly not to be done. He ordered the Trustee to pay Chamberlain’s claim.
Shortly thereafter, the Trustee paid Chamberlain’s claim. Chamberlain asserts that the Trustee said, at the time, that he was not going to1 appeal from the order of the District Court, and it does appear that Chamberlain then thought that the controversy was finally settled, for he then released to the real estate agent the $500 held in escrow. The Trustee asserts, however, that he did not make any commitment about an appeal, and on this motion we have no means to resolve the factual conflict between the parties.
Since there was no undisputed agreement not to appeal, we have then only the fact of the Trustee’s payment of the judgment and Chamberlain’s subsequent release of the escrowed funds.
The usual rule in the federal courts is that payment of a judgment does not foreclose an appeal. Unless there is some contemporaneous agreement not to appeal, implicit in a compromise of the claim after judgment, and so long as, upon reversal, restitution can be enforced, payment of the judgment does not make the controversy moot.
Chamberlain contends, however, that his release to the real estate agent of the $500 placed in escrow has created an estoppel in pais which ought to foreclose the Trustee’s right of appeal. As indicated above, however, we have no basis for a finding upon the present record as to whether or not and to what extent the Trustee was responsible for Chamberlain’s assumption or opinion that the controversy was ended by the Trustee’s payment of the judgment. Nor do we think that the release of the escrowed funds was such an additional circumstance as to avoid the general rule that payment of a judgment does not foreclose a subsequent appeal. Doubtless, if the Trustee led Chamberlain reasonably to believe that the controversy was ended and thus unconditionally to release the $500 in escrow, and if it should ultimately eventuate the unconditional release of the escrowed funds resulted in an overpayment of real estate commissions, the loss arising out of the overpayment should fall upon the Trustee and not upon ■Chamberlain, but that is a matter which can be subsequently determined and adjusted. In the meanwhile, Chamberlain’s risk of possible loss, not exceeding $500 by reason of a speculative overpayment of the real estate commission, •ought not to foreclose the Trustee’s right of appeal of his claimed entitlement to a •credit of $5,000, when Chamberlain’s loss, if any eventuates, is subject to ■equitable adjustment if the Trustee is found to be responsible for it.
For the foregoing reasons, Chamberlain’s motion to docket and dismiss is •denied and the Trustee’s appeal will be •docketed in its regular order.
Motion denied.
. Cahill v. New York, New Haven & Hartford Railroad Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075; Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 28 L.Ed. 981; Ferrell v. Trailmobile, Inc., 5 Cir., 223 F.2d 697; 698; Chicago Great Western Ry. Co. v. Beecher, 8 Cir., 150 F.2d 394, 397-398; Cramer v. Phoenix Mutual Life Ins. Co., 8 Cir., 91 F.2d 141; Luedinghaus Lumber Co. v. Luedinghaus, 9 Cir., 299 F. 111; Josevig-Kennecott Copper Co. v. James F. Howarth Co., 9 Cir., 261 F. 567; Hoogendorn v. Daniel, 9 Cir., 202 F. 431; Leader Clothing Co. v. Fidelity & Casualty Co. of New York, 10 Cir., 227 F.2d 574.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer:
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songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
HANBACK v. DUTCH BAKER BOY, Inc.
No. 7205.
United States Court of Appeals for the District of Columbia.
Decided Aug. 7, 1939.
T. Edward O’Connell, of Washington, D. C., for plaintiff in error.
Paul J. Sedgwick, of Washington, D. C., for defendant in error.
. Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.
STEPHENS, Associate Justice.
This case is here upon a writ of error to the Municipal Court of the District of Columbia. The plaintiff in error (hereafter referred to as plaintiff), an infant, brought suit, through her father as next friend, against the defendant in error (hereafter called defendant), a local bakery, for damages for illness caused by food poisoning. The plaintiff alleged that her mother purchased chocolate eclairs from the defendant, which had knowledge through its servants that they were intended for the plaintiff’s consumption, and that she ate one of them, which proved to be unwholesom'e, with resultant injury. The trial court sustained a demurrer to the complaint upon the ground that “lack of privity of contract bars the right of the .infant to recover on implied warranty of wholesomeness and fitness for human consumption.” The plaintiff stood on her declaration and judgment was entered for the defendant. We granted a writ. The case presents but one issue — whether a consumer of food, other than a purchaser, can recover against a seller on an implied warranty that the food is wholesome.
The appellant urges that for the protection of the public liability upon the theory of implied warranty should extend to all consumers and that the limitation to “privity of contract” is unreasonable and harsh in its results. But we considered this question in Connecticut Pie Co. v. Lynch, 1932, 61 App.D.C. 81, 57 F.2d 447, and therein held that there could be no recovery on an implied warranty where the suit was by sub-purchaser against manufacturer, this because of lack of contractual relationship between the parties. Under that holding the plaintiff must fail here. She is but the donee of a puchaser. The remedy in such situations in this jurisdiction is in tort for negligence.
In Cushing v. Rodman, 1936, 65 App.D.C. 258, 82 F.2d 864, 104 A.L.R. 1023, we held that a purchaser of food could recover from a retailer upon an implied warranty of wholesomeness notwithstanding that the retailer could not have discovered the defect without destroying marketability of the article. . The plaintiff insists that language in the opinion, to the effect that the allowance of recovery upon an implied warranty better protects the consuming public than the restriction of liability to tort, indicates an intention to overrule Connecticut Pie Co. v. Lynch. These statements were but a part of the reasons given for choosing, from divergent lines of authority in other jurisdictions, the warranty rule. In Cushing v. Rodman, far from overruling the Pie Company case, in citing it we recognized its limitation of the warranty rule. And since Cushing v. Rodman involved a purchaser, it does not rule the case of a purchaser’s donee.
Since Cushing v. Rodman, the Uniform Sales Act, D.C.Code (Supp.1939) tit. 11, c. 4, 50 Stat. 29(1937), has been passed for the District of Columbia. The sale involved in the instant case is subject to the Act, the sale occurring on September 23, 1937, and the Act taking effect on July 1 of the same year. So far as here pertinent, the Act provides:
“Sec. 15. ... there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, ■ except as follows:
“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.
“Sec. 69. ... (1) Where there is a breach of warranty by the seller, the buyer may, at his election—
* * *
“(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty ....
“Sec. 76. .'. . ‘Buyer’ means a person who buys or agrees to buy goods or any legal successor in interest of such person.”
We think the language of this'Act sufficiently broad to cover sales of food and that it therefore confirms the doctrine of Cushing v. Rodman. But the Act does not aid the plaintiff in the instant case. She is neither a buyer nor, within the normal sense of the term, a successor in interest of the buyer.
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_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".
CHICAGO & N. W. RY. CO. v. BEWSHER.
(Circuit Court of Appeals, Eighth Circuit.
July 28, 1925.)
No. 6831.
1. Carriers <§=3160 — Carriers might, prior to amendment of Interstate Commerce Act, limit time within which suits might be brought on contracts of carriage.
Prior to amendment by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), to Interstate Commerce Act, § 20, par. 11, carriers might limit time within which suits might be brought on contracts of carriage, subject only to reasonableness of the limitation.
2. Carriers <§=3160 — Carriers held unauthorized to place any fiat restriction on time within which suit may be brought on contracts of carriage, based on ti-me of delivery of the shipment.
Under Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), carriers held unauthorized to place any flat restriction on time within which suit may be brought on contracts of carriage, based on time of delivery of the shipment, rather than time of giving of the notice prescribed therein.
3. Carriers <§=3160 — Limitation in bill of lading for institution of suits for loss, damage, or delay on contracts of carriage, held void, as contravening amendment of Interstate Commerce Act.
Provision of bill of lading that suits for loss, damage, or delay on contracts of carriage should be instituted only within two years and one day after • delivery of the property, or, in case of failure to make delivery within two years and one day, after a reasonable time for delivery has elapsed, held void, as contravening Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 439-438 (Comp. St. Ann. Supp. 1923, § 8604a).
4. Carriers <§=359 — Holder of order bill of lading not estopped to maintain action for damages for issuance of false bill of lading by redelivery of claim to shipper and shipper’s settlement with carrier.
In action by holder in good faith of order bill of lading, under Bill of Lading Act Aug. 29, 1916, § 22 (Comp. St. § 8604kk), for damages caused by carrier’s nonreceipt of part of carload of wheat described in bill of lading, plaintiff held not estopped to maintain his action by redelivering claim and supporting papers to shipper, and by shipper’s settlement, where claim made and filed was for wheat declared to have been lost in transit.
5. Carriers <§=>52(2) — Carrier may show that goods described in hill of jading were never delivered, and is not estopped by recitals in bill.
Carrier, issuing a bill of lading, may show that the goods described therein were never in fact delivered, and is not estopped by recitals in such bill.
6. Carriers <§=355 — Bill of Lading Act manifests congressional intention to make ordinary bills of lading fully negotiable.
Bill of Lading Act Aug. 29, 1916 (Comp. St. §§ 8604aaa-8604w), manifests a clear intention of Congress to malte ordinary bills of lading fully negotiable and they are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act, or others of like import, or some notice or recitation inconsistent with negotiability.
7. Carriers <§=359— Carrier held liable to holder in good faith of order bill of lading for damages caused by nonreceipt of part of carload of wheat; “weight subject to correction."
Carrier held liable to holder in good faith of order bill of lading covering car of wheat for damages caused by carrier’s nonreceipt of part of the goods, in view of Bill of Lading Act Aug. 29, 1916, §§ 20, 22 (Comp. St. §§ 8604jj, 8604kk), notwithstanding that wheat was loaded by shipper, and that bill of lading recited that weight was “subject to correction”; such words not being of “like purport” to the words “shipper’s weight, load, and count,” or “shipper’s weight,” or that weight of wheat was “said to be” weight recited in bill of lading, within section 21 (Comp. St. § 8604k), prescribing what descriptions in bill of lading shall not render carrier liable.
In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.
Action by Augustus H. Bewsher, doing business as the Bewsher Company, against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Wymer Dressier, Robert D. Neely, and Paul S. Topping, all of Omaha, Neb., for plaintiff in error.
R. B. Schuyler, of Omaha, Neb., for defendant in error.
Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.
SCOTT, District Judge.
This is an action by Augustus H. Bewsher, doing business as the Bewsher Company, a grain dealer at Omaha, Neb., against the Chicago & Northwestern Railway Company, to recover $650.-75 damages alleged to be due on account of tbe issuance of an order bill of- lading to ene Albert Swick at Buffalo Gap, S. D., for 66,000 pounds of bulk wheat. Plaintiff in his petition alleges in substance that on or about the 27th day of December, 1920, Albert Swick loaded at Oral, S. D., defendant’s car No. 118,720 with wheat; that said wheat was consigned to the plaintiff at Omaha, Neb., and the duly authorized agent of defendant at Buffalo Gap, S. D., issued a bill of lading covering said wheat, a copy of which bill of lading is exhibited on plaintiff’s petition; that said bill of lading with draft attached was forwarded from the- Oral State Bank, of Oral, S. D., to the 'Merchants’ National Bank, of Omaha, Neb.; that said draft was drawn on the plaintiff for the amount of $1,900, which draft was honored and paid by the plaintiff on January 3, 1921; that at the time plaintiff honored said draft he was the holder in good faith of said order bill of lading and paid $1,900 to Merchants’ National Bank, agent'of Albert Swick, the shipper, relying upon the description set forth in said bill of lading, and at the time actually believed that there was 66,-000 pounds of wheat shipped in said car; that as a matter of fact said ear never contained 66,000 pounds of wheat, but only contained 45,590 pounds; that defendant company negligently failed to weigh the wheat at the time of shipment, and failed to notify plaintiff of the fact that said wheat was not weighed.
Plaintiff further pleads that on or about the 3d day of February, 1921, having prior thereto taken an assignment of the claim of said Albert Swick, he filed a daim for the account of plaintiff with defendant, together with proof of loss thereon, said claim being covered by defendant’s claim No. 201,977— Desk 1; that said claim was filed with defendant in less than 90 days from the date of delivery of said wheat at destination; that on or about the 14th day of May, 1921, defendant refused to pay said claim, but did offer to compromise the same for the amount of.$54.55. The bill of lading exhibited on plaintiff’s petition recites'the receipt at Buffalo Gap, S. D., from Albert Swick, C & NW ear No. 118,720, and under the description of articles, recites: “Bulk Wheat, 60 M car Ordered 80 M ear furnished Co C &NW Weight (subject to correction) 66,-000 Loaded at Oral SD.”
Defendant, answering, admits that on the date alleged. Albert Swick loaded the car in question with bulk wheat at Oral, S. D., and consigned same to himself at Omaha, Neb., notifying the plaintiff company;'admits that the bill of lading was issued as alleged; and concludes by denying all other allegations of plaintiff’s petition. Defendant, further answering, pleads four separate defensive paragraphs, the order of which we transpose somewhat, to meet what we deem to be the logical order of their consideration. These defenses are:
(1) That section 2 of said bill of lading provides that no suit shall be maintained thereon unless commenced within two years and one day from the delivery of the goods therein, and defendant alleges that this suit was not commenced within said time, and is therefore barred by the terms of said bill of lading.
(2) That plaintiff made claim against defendant on the 4th day of February, 1921, for $577.76 for alleged loss of grain from said ear during transportation, and among the papers presented to the defendant in support of said claim was a copy of an assignment made by Albert Swick to plaintiff; and on March 8, 1921, defendant wrote a letter to plaintiff, declining to recognize said claim, and defendant alleges that this suit was not commenced within two years from March 8, 1921, and is therefore barred by operation of law.
(3) That plaintiff is estopped to maintain this suit for the reason that, after plaintiff had made said claim upon defendant and said claim was declined by defendant, plaintiff delivered to Albert Swick all supporting papers, including the assignment which plaintiff had presented to defendant in support of said claim, and thereafter the said Albert Swiek again presented to the defendant said claim for alleged loss of grain in transit from said shipment, and Albert Swick and defendant entered into a compromise and settlement of said claim for the sum of $54.05, and the defendant on June 2,' 1921, paid to Albert Swick the sum of $54.05 in full settlement of all claims on account of said shipment; that by reason of said conduct plaintiff is now estopped to claim that he had any interest in said shipment or in said claim, other than ás the representative of Albert Swick, and defendant alleges that said claim has been fully compromised and settled.
(4) That the wheat mentioned in plaintiff’s petition was loaded by the shipper, on facilities furnished by the shipper, and was not loaded by the defendant, and same was received under the terms of said bill of lading, which provided that the weight of said shipment was subject to correction.
The ease was tried upon the issues as stated. The facts were largely stipulated, and from such stipulation and the testimony of plaintiff Bewsher, the following facts appear without controversy:
That about the date alleged Albert Swick loaded the car of bulk wheat at Oral, S. D., That as of the same date defendant’s agent at Buffalo Gap issued the bill of lading in question with the recitals as stated in plaintiff’s petition. That the ear was weighed on track scales at Chadron, and the weight of the grain, using the gross weight and then subtracting the stenciled weight on the ear, resulted in a net weight of 48,300 pounds, and that the weight ascertained at Omaha, when the grain was unloaded and weighed by the grain exchange weighmaster, was 45,590 pounds. That there was no actual loss of grain from the car, and the car was in good condition, and the difference between the indicated weight on the bill of lading and the unloading weight was never actually put into the ear. That on February 4, 1921, plaintiff presented a claim to defendant, having first taken an assignment from Albert Swick, for the sum of $577.76 for shortage in the shipment, supporting his claim by a copy of the bill of lading, weights, and the assignment of the claim from Swick. That on March 8, 1921, H. C. Howe, freight claim agent, claim department of defendant, wrote the Bewsher Company the following letter:
“Referring to your claim No. 746, our number as above, for $577.76, alleged loss of wheat shipped from Buffalo Gap, S. D., to Omaha, Neb., amount of wheat claimed to have been lost 20,780 pounds: From the investigation I have made of this matter, I find that this ear was weighed at Chadron, a short distance from Buffalo Gap,with a net weight of 48,300 pounds. Deducting 800 pounds for the grain doors would leave a net weight of 47,500 pounds, and as your weight at Omaha was 45,590, it is quite clear to me that there was no loss beyond the 1,910 pounds, and that an error has been made in weighing at point of shipment. There is no record of the car being in bad order. It arrived under proper seals, and therefore'I cannot see any greater loss than the 1,910 pounds, less 67 pounds for shrinkage, which, together with the freight on the shrinkage and the price, $1.65, would leave $54.05 due you, which I am willing to pay.”
That on April 5,1921, the Bewsher Company wrote defendant the following letter:
“Please refer to yours of March 8th, file Rr-201977-1. The shipper requests us to instruct you to return all papers filed in connection with this claim, so that he can turn them over to> an attorney, with instructions to bring suit. Your offer-of settlement is too ridiculously low to be given consideration, in view of the shipper’s contention that he can well substantiate the weight loaded into this car. Therefore be good enough to return these papers to us at once.”
That after some delay the supporting papers of the claim were returned by the defendant to the plaintiff, who transmitted the same to Albert Swick with the following letter:
“May 16, 1921.
“Mr. Albert Swick, Oral, So. Dak.— Dear Sir: Although we instructed the Northwestern, under date of April 5th, to return all papers we filed with them in your claim for shortage - on car 118720, shipped December 27, 1920, we only to-day received them, and herewith return them to you. The recall of these papers was due to the fact that, while this claim was filed for $577.76, as indicated by copy of invoice which we herewith attach, they made an offer of settlement of only $54.05, which we refused, and suggested to you that you place these papers in the hands of your attorney, and, if you are in a position to substantiate the weights as loaded into the ear beyond any question of a doubt, he can recover for you. We will be very glad to furnish any information your attorney may need from this end of the line, and assist in any way possible to help recover this money for you. We think you will find that your attorney will be willing to handle this on a contingency fee; that is, a percentage of the amount he collects, and, if he collects nothing, he will probably only ask you to pay the costs that he has been put to in the suit. We wish you luck in this collection, and, as before stated, if we can be of additional service in recovering this amount, let us know. We are also returning you the weight tickets you sent us at the time we asked you for a copy of your weights in connection with this claim.
“Yours very truly, Manager.”
That Albert Swick, following receipt of the supporting papers, communicated with the claim department of defendant, and made settlement of the claim for the sum of $54.05, being the amount of shortage ascertained by defendant.
In addition to the foregoing facts, which were stipulated, plaintiff testified in his own behalf to the custom and method of handling such transactions in his office, which was in substance that the clerk or bookkeeper, on presentation of the draft and bill of lading would figure out the value of the contents of the car, based on the existing state of the Omaha market, and if there was an apparent overdraft they would submit it to him, as to whether it should be paid; that if the car was clear, and no apparent overdraft, he would never see the papers; that his usual custom was to allow the shipper to draw from 75 to 85 per cent, of the value of a shipment; that a man whose eredit was without question could probably draw 90 or 95 per cent., and occasionally $100 or $150 overdraft would not be questioned; that Mr. Swiek was a customer that he would not allow to overdraw very much, but would try to hold his business by not telling him he doubted his credit, but at the same time would not like to pay an overdraft for him; that plaintiff procured the assignment of the claim from Albert Swiek and filed the claim with the defendant, calling attention to the assignment and requesting payment direct to him; that he was never advised of the settlement by Swiek until shortly before suit was begun.
The record shows without controversy that plaintiff honored the draft for $1,900 and paid the same, and has not been repaid; and it is stipulated that, if plaintiff is entitled to recover anything, he is entitled to recover $595. At the conclusion of defendant’s testimony both parties rested, and upon motion of the plaintiff the eourt directed a.verdict for the plaintiff for the amount above indicated, to which defendant excepted, and after entry of judgment sued out writ of error, and now assigns the following errors:
“I. The eourt erred in instructing the jury to return a verdict for the plaintiff and in refusing to instruct a verdict for defendant.
“II. The court erred in holding and deciding that the provision in the bill of lading involved m this suit, limiting the right to bring the suit to a period of two years from the time the claim, or any part thereof, was declined, was null and void.
“III. The court erred in holding and deciding that the letter written by H. C. Howe to the Bewsher Company and contained in the bill of exceptions did not constitute a declination of said claim, or any part thereof, within the meaning of the Interstate Commerce Act as amended.
“IY. The court erred in entering judgment in favor of the plaintiff and against the defendant.”
The foregoing assignment of errors was filed with the clerk at the time the writ of error was sued out. Assignment II above is now apparently abandoned, and we think properly so, as it had no foundation in the record. Counsel for plaintiff in error on their brief assign that error in the following language:
“The court erred in its ruling of law upon the proposition that the limitation in the bill of lading restricting the right to commence suit within two years, and not after, from the time of shipment, was null and void under the Interstate Commerce Act.”
Counsel in briefs and arguments have not followed the order of assignment of error, nor confined themselves strictly to the propositions involved therein. We are therefore of opinion that the questions presented for decision can be more logically discussed by following the order of the defenses as they appear in our statement of the issues. These questions are:
(1) Is the provision in section 3 of the bill of lading that “suits for loss, damage or delay, shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make the delivery, then within two years and one day after a reasonable time for delivery has elapsed,” void as contravening the amendment of February 28, 1920, to paragraph 11 of section 20 of the Act to Regulate Commerce?
(2) May and should the eourt read out of the provision quoted the words, “after delivery of the property,” etc., and read into the contract the provision in said amendment that such period for institution of suits be computed from the date when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part thereof specified in the notice?
(3) Is plaintiff estopped to maintain the suit because he redelivered the claim and supporting papers to Albert Swiek with direction to commence suit, and the settlement of the claim by Albert Swiek?
(4) Is plaintiff concluded by the fact that the grain was loaded by the shipper and that the bill of lading recited that the weight was “subject to correction”?
We consider these questions in the order stated. It is well settled that, prior to the amendment approved February 28, 1920, it was entirely competent for carriers to limit the time within which suits might be brought on contracts of carriage, subject only to the reasonableness of the limitation. Indeed, we are not without authority on the subject as applied to the particular statute as it existed prior to the amendment. Leigh Ellis & Co. v. Payne (D. C.) 274 F. 443, affirmed by the Circuit Court of Appeals for the Fifth Circuit in Leigh Ellis & Co. v. Davis, 276 F. 400, and affirmed by the Supreme Court of the United States in Leigh Ellis & Co. v. Davis, 260 U. S. 682, 43 S. Ct. 243, 67 L. Ed. 460.
Under this statute, as it existed before the amendment, and other provisions relative to the filing of claims, hardship often occurred by reason of the delay of the carrier in giving notiee of its disapproval of the claim, often resulting in an unreasonable balance of time within which the shipper might institute his suit. This was at least one of the evils which Congress sought to remedy by the amendment of February 28, 1920. By that amendment the words, “such period for institution of suits to be computed from the day when notiee in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notiee,” were added to the previous paragraph, making the paragraph read as follows:
“Provided further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notiee of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.” Comp. St. Ann. Supp. 1923, § 8604a.
It seems to us clear that, after the amendment quoted, any flat restriction of time within which suit might be brought based upon the time of delivery of the shipment, rather than the time of the giving of the notice prescribed, would be in contravention of the amendment, and “be unlawful” within the purview of the amended paragraph.
But plaintiff in error, probably anticipating the possibility of the conclusion we here reach, contends that, notwithstanding the inconsistency of the language of the provision of the contract with the amended statute, the court should read out of the contract that part of its express language which initiates the time limit at the date of shipment, and read into the contract the provision of the amendment of 1920. In support of this contention counsel cites American Railway Express Co. v. Lindenburg, 260 U. S. 584, 43 S. Ct. 206, 67 L. Ed. 414. We do not think this ease in point on the question under consideration. In that ease the unlawful provision of the receipt could be readily separated from the remaining provisions, and that case merely holds that the presence of the unlawful provision did not render unlawful others which were separable from it. In the instant case, however, we are asked, not only to read out of the contract a particular expressed provision, but to substitute therefor another entirely different provision, and thereby to declare lawful and enforceable a form of contract which Congress deliberately undertook to and did prohibit. We are constrained to the conclusion that this cannot be done.
We come now to the question of estoppel. Is the plaintiff estopped by his conduct in redelivering the claim and supporting papers to Swick, and by Swick’s settlement? Examination of the claim filed with the defendant and its supporting papers makes clear that the claim made and filed was for wheat declared to have been lost in transit. The contention was for a disparity in weight between the time of loading and the time of unloading. There was a difference between the claim of the shipper and the fact' as ascertained by the defendant. That Swick, the shipper, and the plaintiff, proceeded upon the theory that 66,000 pounds of wheat had been loaded, is clearly indicated by plaintiff’s letter to Swick when he returned the claim and supporting papers. He says: “If you are in a position to substantiate the weights as loaded into the car beyond any question of a doubt, he can recover for you.” It is clear from the record that throughout all negotiations prior to the beginning of suit, all parties proceeded upon the theory that the controversy was over grain lost in transit, and that was plaintiff's thought at the time he returned the claim and supporting papers. But the plaintiff at least was mistaken in this assumption.
As to whether Swick was mistaken is a matter upon which the record throws no light. In any event, Swick on return of the papers reopened negotiations with the defendant, and promptly arrived at a settlement on the basis of the amount of grain actually lost in transit, and received in settlement full payment therefor. It is beyond question that the $54.05 received by Swick was all that he could possibly have recovered, had he instituted suit and prosecuted it to judgment. Under no theory suggested or advanced was the defendant liable to Swick for more grain than he actually loaded. And it was a claim for grain loaded that Swick undertook to assign, and that plaintiff undertook a redelivery, and for which settlement was made. We think such a settlement has no concluding effect upon the cause of action for damages for the issuance of a false bill of lading, liability for which is to be established under the provisions of section 22 of the Bill of Lading Act, approved August 29, 1916 (Comp. St. § 8604kk). The cause of action declared in the plaintiff’s petition is entirely different from that declared in the claim originally filed with the defendant. We therefore conclude that the plaintiff is not es-topped by the Swick settlement.
Finally, is plaintiff concluded by the fact that ’the grain was loaded by the shipper, and that the hill of lading recited that the weight was “subject to correction”? Examination of this question leads us to consider the legal character of bills of lading, and some mutations of such character brought about by national legislation. It has been almost universally held that a hill of lading is not only a receipt, but.a contract; and numerous decisions of state courts have clothed such instruments with a character of negotiability more or less complete. For examples of these decisions one may consult 6 Cyc. under head of “Carriers,” subhead “Bills of Lading,” and for a discussion of the principle of estoppel of the issuance of a bill of lading particularly, page 418 et seq. See, also, 1 Hutchinson on Carriers (3d Ed.) § 157 et seq. The Supreme Court of the United States, however, had long prior to the Act of Congress of August 29, 1916, commonly called the Bill of Lading Act, declared its own views with respect to these instruments, in Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998, Mr. Justice Miller, in speaking for that court, said:
“A bill of lading is an instrument well known in commercial transactions, and its character and effect have been defined by judicial decisions. In the hands of the holder it is evidence of ownership, special or general, of the property mentioned in it, and of the right to receive said property at the place of delivery. Notwithstanding it is designed to pass from hand to hand, with or without indorsement, and it is efficacious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those cases, all inquiry into the transaction in which it originated, because it has come into hands of persons who have innocently paid value for it. The doctrine of bona fide purchasers only applies to it in a limited sense.
“It is an instrument of a twofold character. It is at once a receipt and'a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually ■ received, there can be no valid contract to' carry or to deliver.”
It was held in that case that, although innocent, the indorsee and holder of a bill of lading with draft attached could not recover; it being shown that the cotton for which the bill was issued was never delivered to the master of the boat. This decision was followed in Missouri Pacific R. Co. v. McFadden, 154 U. S. 155,14 S. Ct. 990, 38 L. Ed. 944, and in many other eases. So it seems to us to have been firmly established by decisions of the Supreme Court that the carrier issuing a bill of lading may show that the goods described therein were never in fact delivered, and that such carrier is not estopped by the recitals in such hill. It is not so well settled, however, that where a shipment has actually been delivered, but the goods fall short of the quantity declared in the bill of lading, that the carrier may with equal success urge such defense. This question is quite exhaustively discussed by Mr. Freeman in a note to Chandler v. Sprague, 38 Am. Dec. at pages 413 and 414. The conclusion there is apparently arrived at that the bill of lading is not conclusive as to quantity. The author of the note on page 414 criticizes the application of the rule where a portion of the goods have been delivered. It is there said:
“A plain distinction exists, as it seems to us, between the two classes of cases. There is some show of reason for holding that a bill of lading issued by a master or other agent, where no goods have been shipped, is beyond the agent’s authority, and therefore void even in the hands of a stranger who has in good faith advanced money on it. But where there is a shipment of goods, the master or agent has authority to sign a bill of lading, and if he misrepresents the quantity of goods, and an. innocent third person is thereby induced to part with his money ■on the faith of the representation, the principal ought certainly to be bound, because the agent has not acted outside of his authority, but has merely abused it. ”
Whatever may be the merits of the argument here under consideration of the doctrine of estoppel in pais, it has been sufficiently settled in the federal jurisdiction that no estoppel results by reason of the negotiable character of the instrument. This fact no doubt influenced in a measure the action of Congress in the enactment of the Bill of Lading Act. While that act does not in so many words declare bills of lading to be negotiable instruments, we think, from the implications of the various provisions of the act and the repeated declarations that things specified shall not render these instruments nonnegotiable, that it was the clear intention of Congress to so legislate that ordinary bills of lading may be fully negotiable, and are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act or others of like import, or some notice or recitation inconsistent.with negotiability.
Three sections of the act, sections 20, 21, and 22 (Comp. St. Ann. Supp. 1923, §§ 8604jj — 8640kk), should be carefully analyzed in determining the question under consideration. Section 20 deals with goods loaded by the carrier, and prescribes certain duties of the carrier in such cases. In ease of package freight, the carrier must “count the packages,” and, if bulk freight, “ascertain the kind and quantity,” and then follows the provision that in such cases the carrier shall not insert in the bill of lading or in any notice, receipt, contract, rule, regulation, or tariff, the words, “Shipper’s weight, load, and count,” or other words of like purport, indicating that the goods are loaded by the shipper and the description made by him.
Section 21 deals with freight loaded by' the shipper, and prescribes when descriptions in the bill of lading shall not render the carrier liable, as, for instance, when “the goods are described in a bill of lading merely by a statement of marks or labels upon them or upon packages containing them, or by a statement that the goods are said to be goods of a -certain kind or quantity, or in a certain condition, or it is stated in the bill of lading that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents or condition of the contents of packages are unknown, or words of like purport are contained in the bill of lading.” It is further provided that, when these statements are contained in the bill, the description shall not render the carrier liable, “although the goods are not of the kind or quantity or in the condition which the marks or labels upon them indicate, or of the kind or quantity or in the condition they were said to be by the consignor.” This section further provides:
“The carrier may also by inserting in the bill of lading the words 'Shipper’s weight, load, and count,’ or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the nonreceipt or by the misdescription of the goods described in the bill of lading.”
Section 22 is the section by which we think Congress intended to change the existing rule of liability as declared by the federal courts. That section provides:
“That if a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual • or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to' (a) the owner of goods covered by a straight- bill subject to existing right of stoppage in transitu or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, for damages caused by the nonreeeipt by the carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of its issue.”
Now in the case at bar we are dealing with bulk freight loaded by the shipper, but the bill of lading does not contain any of the particular notices or recitals specified in section 21 of the Bill of Lading Act, and unless we are to hold that the mere words “weight subject to correction” are of “like purport” to the words “shipper’s weight, load and count,” or “shipper’s weight,” or are equivalent to a statement that the weight of the wheat is “said to be” 66,000 pounds, then it would seem clear that the defendant would be liable to a holder in good faith of the order bill in question “for damages caused by the nonreceipt by the carrier of all or part of the goods.”
We do not overlook the fact that there are some scattering judicial pronouncements of the fact that the insertion of the words “weight subject to correction” in a bill of lading is sufficient to avoid the effect of the estoppel which might otherwise result. In Brown v. Missouri, K. & T. R. Co., 83 Kan. 574, 112 P. 147, the Supreme Court of Kansas said: “Ordinarily bills of lading are prima facie evidence against the carrier issuing them of the amount of goods received. 4 A. & E. Encycl. of L. 522; 1 Hutchinson on Carriers, § 158. The defendant maintains that here they have not that effect, because of the insertion of the qualifying words, ‘in apparent good order’ and ‘weights subject to correction.’ It is doubtful whether the first phrase can apply to material shipped in bulk (6 Cyc. 418, 419), but in any event it does not change the effect of the instrument as prima facie evidence (4 A. & E. Encycl. of L. 522, 523, note 7; 6 Cyc. 422). The expression, “weights subject to correction,”" has an important function. It avoids the estoppel which would otherwise under some circumstances preclude the carrier from disputing the weight. 6 Cyc. 418. It does not destroy the prima facie effect of the recital as to quantity. It merely leaves the matter open to further inquiry, instead of being absolutely concluded.' Its insertion in a bill of lading has been held, where other rights have intervened, not even to prevent the statement of weight from being conclusive, except as to minor errors. Tibbits v. R. I. & P. Ry. Co., 49 Ill App. 567,
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_respond1_1_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
MELLON BANK (EAST) PSFS, N.A., a federally chartered banking association v. DiVERONICA BROS., INC., Appellant.
No. 92-1244.
United States Court of Appeals, Third Circuit.
Argued Nov. 3, 1992.
Decided Jan. 15, 1993.
Frank J. Vavonese (argued), Syracuse, NY, for appellant.
Andrew D. Bershad (argued), Blank, Rome, Comisky & McCauley, Philadelphia, PA, for appellee.
Before: SLOVITER, Chief Judge, STAPLETON and LAY , Circuit Judges.
Honorable Donald P. Lay, Senior Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
OPINION OF THE COURT
SLOVITER, Chief Judge.
Defendant DiVeronica Bros., Inc. appeals from an order of the district court entering judgment for $78,889.13 in favor of plaintiff Mellon Bank (East) PSFS, N.A. on its breach of contract claim. DiVeronica contends that the district court erred in denying its motion to dismiss the complaint for lack of personal jurisdiction; in finding that its obligation was unconditional; and in finding it was not entitled to an offset. Because we find that DiVeronica had insufficient contacts with Pennsylvania to warrant the exercise of personal jurisdiction over it, we do not reach the other issues posed.
I.
Facts and Procedural History
On June 29, 1982, Girard Bank entered into a loan agreement with Hubbell Holding Corp. and its affiliated companies: O.W. Hubbell & Sons, Inc.; Hubbell Highway Signs, Inc.; Hubbell Electric, Inc.; Cable Guide Railing Construction Co., Inc.; Triboro Neon & Service Corp.; and Bundy Concrete Products, Inc. (referred to jointly as the Hubbell Companies unless otherwise noted). As collateral, the Hubbell Companies granted, inter alia, a continuing lien and security interest in their accounts receivable. The loan was cross-collateralized so that collateral from any one of the Hub-bell Companies could be used by Girard Bank to discharge the debt of the others. App. at 531, 539. In the mid-1980s, Girard Bank was acquired by Mellon Bank (East) PSFS, N.A., a federally chartered banking association with its principal place of business in Pennsylvania.
In February 1990, the Hubbell Companies defaulted on their loan obligations. Mellon Bank first demanded payment, and then on March 23, 1990 took peaceful possession of the collateral, including the accounts receivable. When one of the companies, O.W. Hubbell & Sons, was brought into involuntary bankruptcy, later converted into a voluntary chapter 11 proceeding, Mellon Bank obtained permission from the bankruptcy court of the Northern District of New York to lift the automatic stay to continue to collect the accounts receivable.
Because defendant DiVeronica Bros., Inc. had operated as both a subcontractor to and a general contractor of some of the individual Hubbell Companies, resulting in a series of credits and debits between them, in May 1990, the Hubbell Companies and DiVeronica met to settle their accounts. The oral agreement they reached fixing the amounts of their debts was later confirmed in a letter from Mellon Bank to the president of DiVeronica (the Letter Agreement). The Letter Agreement stated that in total, DiVeronica owed the Hubbell Companies $86,877.13; that O.W. Hubbell & Sons (the company in bankruptcy) owed DiVeronica $86,788.71 for work completed; and that DiVeronica had applied for payment of that amount from the Reliance Insurance Company, a New York corporation, which had insured payment and performance by O.W. Hubbell & Sons on the construction project for which DiVeronica as subcontractor was owed the $86,788.71. It further stated that “Hubbell and Divero-nica have agreed that upon receipt of $86,-788.71 from Reliance Insurance Co., Diver-onica will pay [an outstanding lien].... After the lien has been removed, Diveroni-ca will pay Hubbell $86,877.13.” At the meeting leading to this agreement, Robert Obernesser, the manager of the construction division of O.W. Hubbell & Sons, agreed to assist DiVeronica in asserting its claim on the Reliance bond.
Reliance apparently disclaimed on the surety bond, and there remain accounts outstanding to and from DiVeronica and several of the Hubbell Companies. As as-signee of the receivables of the Hubbell Companies, Mellon Bank filed this diversity action in the Eastern District of Pennsylvania to recover the debts DiVeronica owed three of the Hubbell Companies. The district court denied DiVeronica’s motion to dismiss for lack of personal jurisdiction.
At the bench trial that followed, DiVero-nica contended that because O.W. Hubbell & Sons owed it some $8,000 more than DiVeronica owed the Hubbell Companies together, it was entitled to set off the debts and had no duty to pay. It further argued that receipt of the payment on the surety bond was a condition precedent to its obligation to pay the accounts due to the Hub-bell Companies, and that therefore Mellon Bank could not collect as assignee. The district court rejected these contentions and entered judgment in the amount of $78,889.13 in favor of plaintiff Mellon Bank. DiVeronica filed a timely appeal, asserting lack of personal jurisdiction or, in the alternative, entry of judgment in favor of the defendant or a new trial based on errors of law and fact committed in the district court.
II.
Jurisdictional Facts
Because resolution of this appeal turns on the jurisdictional question, we proceed to consider separately those facts relevant to the exercise of personal jurisdiction over DiVeronica which were developed at the evidentiary hearing on this issue.
DiVeronica is a New York corporation with a single office in Canastota, New York. Its business is construction, primarily roads, bridges, and buildings. The highway construction contracts between the Hubbell Companies and DiVeronica were solicited, contracted, and completed within the State of New York, and were governed by the laws of that state.
DiVeronica has never performed a construction project outside the State of New York; it has never solicited any business nor advertised outside the State of New York. It has no office, mailing address, or property in Pennsylvania; it is not authorized or licensed to do business in Pennsylvania; it has no agents in Pennsylvania; it has not paid any taxes in Pennsylvania; it has never shipped merchandise directly into or through Pennsylvania nor has it supplied services or items here. Finally, the work that DiVeronica performed for the Hubbell Companies that is the subject of its claim on the Reliance bond was performed in New York.
On appeal Mellon Bank seeks to sustain the district court’s ruling denying the motion to dismiss by arguing that jurisdiction is appropriate over DiVeronica because it attempted to realize pecuniary benefit in Pennsylvania by depositing checks from O.W. Hubbell & Sons drawn on Hubbell’s Mellon Bank account which is located in Philadelphia, by submitting a claim to Reliance in Pennsylvania in an effort to collect on the surety bond, and by executing a contract with Mellon Bank knowing that it is located in Philadelphia, Pennsylvania. We will consider the relevance of these facts in the context of the applicable law.
III.
Discussion
Whether personal jurisdiction may be exercised over an out-of-state defendant is a question of law, and this court’s review is therefore plenary. Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 (3d Cir.1990).
A federal court may exercise personal jurisdiction over a non-resident defendant to the extent permitted by the law of the state in which it sits. Fed.R.Civ.P. 4(e). The Pennsylvania long-arm statute provides that jurisdiction may be exercised “to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa. Cons.Stat.Ann. § 5322(b) (Purdon 1981).
Where the defendant has raised a jurisdictional defense, the plaintiff bears the burden of establishing either that the cause of action arose from the defendant’s forum-related activities (specific jurisdiction) or that the defendant has “continuous and systematic” contacts with the forum state (general jurisdiction). Bane v. Netlink, Inc., 925 F.2d 637, 639 (3d Cir.1991) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 416, 104 S.Ct. 1868, 1872, 1873, 80 L.Ed.2d 404 (1984)). Inasmuch as DiVeronica has conducted no solicitation, advertisement, construction, or delivery in Pennsylvania, there can be no assertion that DiVeronica had the continuous and substantial affiliation with the forum necessary for general jurisdiction. See Gehling v. St. George’s School of Medicine, Ltd., 773 F.2d 539, 541 (3d Cir.1985). Therefore, we assume that the district court found that there was specific jurisdiction over DiVeronica on the ground that Mellon Bank’s cause of action arose from DiVeronica’s contacts with Pennsylvania.
Specific jurisdiction exists only where the defendant has sufficient minimum contacts with the forum state that it “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The “ ‘constitutional touchstone’ ” is whether the defendant purposefully established those minimum contacts. North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690 (3d Cir.) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)), cert. denied, 498 U.S. 847, 111 S.Ct. 133, 112 L.Ed.2d 101 (1990). A court must find that there was some act by which the defendant “purposefully availed] itself” of the privilege of conducting activities within the forum. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). We consider in turn each of the acts alleged by Mellon Bank to support the assertion of personal jurisdiction over DiVeronica.
A.
The Checks
Mellon Bank claims that DiVeronica purposefully availed itself, of the benefits of doing business in Pennsylvania by depositing checks drawn on O.W. Hubbell & Sons’ Mellon Bank account. However, there is nothing to suggest that DiVeronica had any involvement in the selection by O.W. Hubbell & Sons of a Pennsylvania bank. The checks were cashed in New York and deposited in New York banks.
Under somewhat similar circumstances the Supreme Court rejected the plaintiffs contention that accepting checks drawn on a bank in the forum state was a basis for finding jurisdiction in that state. In Hall, the Court stated:
There is no indication that [defendant] ever requested that the checks be drawn on a Texas bank or that there was any negotiation between [defendant and the payor] with respect to the location or identity of the bank on which checks would be drawn. Common sense and everyday experience suggest that, absent unusual circumstances, the bank on which a check is drawn is generally of little consequence to the payee and is a matter left to the discretion of the drawer.
466 U.S. at 416-17, 104 S.Ct. at 1873 (footnote omitted). A similar analysis is appropriate here, particularly since Mellon Bank’s claim does not arise out of the deposit by DiVeronica of checks drawn on Mellon Bank.
B.
The Bond
Mellon Bank contends that DiVeronica’s submission of a claim to Reliance Insurance Company in Pennsylvania in an effort to collect on the bond insuring payment and performance by O.W. Hubbell & Sons was an attempt to realize pecuniary benefits of Pennsylvania law. There are several reasons why this act does not constitute a sufficient basis on which to predicate specific jurisdiction. In the first place, the selection of Reliance as the bonding company was made by O.W. Hubbell & Sons, not DiVeronica. As the Supreme Court stated in Hall, “unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.” 466 U.S. at 417, 104 S.Ct. at 1873.
Thus, in Hanson, the Court held that Florida could not exercise in personam jurisdiction over a Delaware trust company merely because the settlor of the trust in question, which was originally established in Delaware, had moved to Florida where she exercised her residual power of appointment. The Supreme Court stated:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 159, 90 L.Ed. 95]. The settlor’s execution in Florida of her power of appointment cannot remedy the absence of such an act in this case.
357 U.S. at 253-54, 78 S.Ct. at 1239-40; see also Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.1982). Also, although the power of attorney accompanying the bond that Reliance provided to O.W. Hubbell & Sons was signed both in Albany, New York by counsel for Reliance and in Philadelphia, Pennsylvania by a vice-president of Reliance, DiVeronica was not involved in deciding where the power of attorney accompanying that bond was executed.
In the second place, DiVeronica sent its claim to Reliance’s Pennsylvania office at the suggestion of Obernesser, Hubbell’s employee who was also acting at the behest of Mellon Bank to assist it in marshaling assets and collecting collateral. App. at 601. Although the bond described the issuer as the “Reliance Insurance Company of New York” with its “principal office in the City of Fairport, New York,” Obernes-ser gave DiVeronica the names and telephone numbers of contacts at Reliance in Pennsylvania, App. at 219-20, and told Di-Veronica that the claim under the performance bond with Reliance had to be filed in Pennsylvania. App. at 220-21. Thus, contrary to Mellon Bank’s assertion that Di-Veronica’s act of filing its claim with Reliance in Pennsylvania shows purposeful availment of this state’s protection, it shows only that Obernesser’s offer of assistance and provision of Reliance contacts and phone numbers in Pennsylvania affected DiVeronica’s choice of where to file.
By the same reasoning, DiVeronica’s follow-up telephone calls to officers of and counsel for Reliance in Pennsylvania cannot suffice as a basis for jurisdiction over it. In Reliance Steel Products Co., we held that telephone calls in which a Missouri defendant allegedly gave negligent legal advice to a Pennsylvania client, even combined with defendant’s advertisement in a legal directory distributed in Pennsylvania and his action in billing the Pennsylvania plaintiff, constituted insufficient contacts by defendant with that state. 675 F.2d at 589. DiVeronica’s calls of inquiry to Reliance’s Pennsylvania office do not show the purposeful availment that can provide a basis for personal jurisdiction.
This is not to suggest that it is merely DiVeronica’s physical absence from Pennsylvania which supports the conclusion that it had no contacts here. The Supreme Court has made clear that jurisdiction may constitutionally be asserted over a defendant who has never set foot in the forum state—so long as defendant “purposefully has directed his activities at forum residents.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 2184-85, 85 L.Ed.2d 528 (1985). In this case, DiVer-onica is not only not physically present, but it has also never “purposefully directed” its activities to Pennsylvania.
Finally, we note that our conclusion that the mere presentation of a claim to a bonding company that posted surety for a contractor’s payments does not support personal jurisdiction in the bonding company’s state is in accord with the reasoning of the other appellate court to consider this issue. See Capital Dredge & Dock Corp. v. Midwest Dredging Co., 573 F.2d 377, 380 (6th Cir.1978).
C.
The Letter Agreement
Mellon Bank argues that DiVeroni-ca attempted to realize a benefit in Pennsylvania when it “executed a contract with Mellon Bank, knowing that Mellon Bank is located in Philadelphia.” Appellant’s Br. at 13. Mellon Bank is referring to the Letter Agreement of May 31, 1990 that fixed the debts between the Hubbell Companies and DiVeronica. At the outset, it is important to note that we see no support for Mellon Bank’s denomination of the Letter Agreement as a contract between it and DiVero-nica. The Agreement, written by Mellon Bank on its stationery, states:
The purpose of this letter is to confirm in writing the verbal agreement you have reached with Bob Obenesser [sic] of O.W. Hubbell & Sons, Inc. relating to the outstanding indebtedness between Hub-bell and Diveronica Bros.
App. at 347-48. It concludes:
If the above accurately summarizes your agreement with Hubbell, please sign as indicated and return this letter to me at your earliest convenience.
App. at 347-48 (emphasis added). In the body of the Letter Agreement, DiVeronica merely acknowledged debts to the Hubbell Companies which had been assigned to Mellon Bank.
Even if the Letter Agreement could somehow be characterized as a contract between DiVeronica and Mellon Bank, it is important to review DiVeronica’s role in the genesis of that document. DiVeronica was not a party to the original 1982 loan agreement between the Hubbell Companies and Girard Bank, and, of course, DiVeroni-ca had no control over the Hubbell Companies’ selection of the Pennsylvania based Girard Bank, Mellon Bank’s predecessor, as their lender. Nor did DiVeronica have any involvement in the subsequent assignment of the accounts receivable to Mellon Bank.
Moreover, after the assignment, it was Mellon Bank that initiated the contacts from Pennsylvania to DiVeronica in New York. Mellon Bank sent a general notification letter on March 8, 1990 from its offices in Pennsylvania to DiVeronica in Canasto-ta, New York, informing DiVeronica that the accounts receivable had been assigned. Thereafter, the oral negotiations leading to the execution of the Letter Agreement were initiated by Mellon Bank: in May of 1990, it asked Obernesser to compile a list of the outstanding debts between the Hub-bell Companies and DiVeronica; Obernes-ser sent the document to an officer at Mellon Bank for review; and he then arranged a meeting with DiVeronica in New York.
After the meeting, which took place at DiVeronica’s offices in New York on May 16, 1990, Daniel K. Clancy of Mellon Bank telephoned from Pennsylvania to DiVeroni-ca in New York to work out the wording of the Letter Agreement. Thereafter, on May 31,1990, Clancy sent the Letter Agreement from Mellon Bank’s offices in Pennsylvania to DiVeronica in New York. Finally, counsel for Mellon Bank sent DiVeronica a letter on July 12, 1990 and another on November 12, 1990, requesting payment of the debts acknowledged in the Letter Agreement.
In connection with the Letter Agreement, the only “purposeful” action by Di-Veronica (through its president) was signing and returning the Agreement to Mellon Bank in Pennsylvania, as requested. We do not believe this can be considered an act by DiVeronica directed at Pennsylvania to benefit from its laws. Contracting with a resident of the forum state does not alone justify the exercise of personal jurisdiction over a non-resident defendant, Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992), particularly where, as here, the out-of-state defendant executed the “contract” only at the behest of the resident.
The facts in Farino, where we sustained personal jurisdiction over the non-resident defendants, stand in contraposition to those in the present case. Defendants were limited partners in Virginia partnerships developing real estate in Virginia who applied to Mellon Bank, a Pennsylvania based lender, for loans that they personally guaranteed. After the partnership defaulted, Mellon Bank filed suit on the guarantees.
We examined the defendants’ contacts for purposeful availment in Pennsylvania, concluding that jurisdiction was proper because the defendants had “ ‘reach[ed] out beyond one state and create[d] continuing relationships and obligations with citizens of another state.’ ” Id. at 1223 (quoting Travelers Health Ass’n v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)). We found particularly compelling the fact that defendants had “purposely directed” their activities into Pennsylvania: they approached Mellon Bank; they chose to finance with Mellon Bank when they could have financed elsewhere; they provided Mellon Bank in Pennsylvania with sufficient documentation so that they would obtain the loans; they sent updated financial information to Mellon Bank; and they knew that payments were to be mailed to Mellon Bank in Pennsylvania. Id. at 1223. Even in view of all of these factors, we wrote that “this [was] a close case.” Id.
In the case before us, Mellon Bank has shown no comparable deliberateness on the part of DiVeronica. DiVeronica merely confirmed to Mellon Bank, a party whom it did not deliberately seek out, its agreement with the Hubbell Companies. DiVeronica did not choose to deal with Mellon Bank; as noted, it had no involvement in the choice of Girard Bank as lender or in the subsequent assignment of the accounts receivable. In this case, “the only significant contact that exists between Pennsylvania and [the defendant] is the result of this lawsuit, not its cause.” Reliance Steel Products Co., 675 F.2d at 589. Under these circumstances, we find that this is not a “close case.”
None of DiVeronica’s marginal activities in Pennsylvania justifies the exercise of specific jurisdiction over it. We therefore conclude that Mellon Bank has not shown that DiVeronica had even minimum contacts with Pennsylvania. It follows that maintenance of the suit would offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted).
IV.
Conclusion
For the foregoing reasons, we will reverse the order of the district court denying DiVeronica’s motion to dismiss and remand for dismissal of the complaint.
. Although the Letter Agreement listed DiVero-nica's debts to the Hubbell Companies as $86,-877.13, Mellon Bank sought damages at trial in the amount of $78,889.13. This reflected DiVer-onica's payment of approximately $8,000 to the Hubbell Companies after the Letter Agreement but before trial.
. The authority that Mellon Bank relied on in its argument before the district court, Sunn Classic Pictures, Inc. v. Budco, 481 F.Supp. 382 (E.D.Pa.1979), does not support the proposition for which it was presented. In that case the third-party defendant who contested jurisdiction was held to have caused harm within the state by its action elsewhere.
. The district court may, in its discretion, transfer this case pursuant to 28 U.S.C. § 1631 if a motion to do so is seasonably filed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_appsubst
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants. Virginia CAIN, Plaintiff-Appellee-Cross-Appellant, v. Robert McQUEEN et al., Defendants-Appellants-Cross-Appellees. Virginia CAIN, Plaintiff-Appellee, v. Robert McQUEEN et al., Defendants-Appellants.
Nos. 76-1222, 76-1387 and 76-1439.
United States Court of Appeals, Ninth Circuit.
Aug. 24, 1978.
Eugene J. Wait, Jr. (argued) of Wait, Shamberger, Georgeson & McQuaid, Reno, Nev., for Robert McQueen et al.
Jerry D. Anker (argued), Washington, D. C., for Virginia Cain.
Before TRASK and ANDERSON, Circuit Judges, and GRANT, District Judge.
Honorable Robert A. Grant, Senior United States District Judge, for the Northern District of Indiana, sitting by designation.
TRASK, Circuit Judge:
This appeal is taken by both plaintiff and defendants from an order of the district court denying defendants’ motion to dismiss and granting limited summary judgment to plaintiff. Plaintiff’s subsequent motion to amend the limited summary judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure was denied.
Jurisdiction in the district court was based upon 42 U.S.C. § 1983, 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3), (4). Appellant in her amended complaint also alleged that the defendant-trustees violated her rights under the First and Fourteenth Amendments to the Constitution of the United States and under Nev.Rev.Stat. § 391.3197 as it existed in March 1973.
The district court certified under Fed.R. Civ.P. Rule 54(b) that there was no just reason for delay for an appeal of the ruling on the motion for summary judgment and expressly directed the entry of the limited summary judgment.
Plaintiff was employed in November 1972 as a substitute teacher for the Washoe County School District in Reno, Nevada. In January 1973, she was given a full-time teaching position which was created by another teacher who had resigned. At that time she was given a standard employment contract, the same as that of any other teacher in the school district, except that it contained the following notation: “Contract starts January 16, 1973 and is for the remainder of the school year only.”
Defendants contend that this notation placed plaintiff in a different status than other teachers, and made her merely a “short-term” employee. The fact is, however, that all teachers’ contracts expire at the end of the school year. All such contracts, including plaintiff’s, are expressly made subject “to the laws of the state of Nevada regarding public schools” whose laws give teachers certain rights to continued employment.
Nevada law (Nev.Rev.Stat. § 391.3197) provides that new teachers are put on probation annually for three years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
The practice of the school district had been generally to provide a teacher with notice and a hearing before the nonrenewal of his or her contract. However, the district had recently adopted the practice of denominating certain teachers’ contracts as “short-term” or “one year only,” and consequently, claimed that Nev.Rev.Stat. § 391.-3197 did not apply to such employees. Defendants maintain that plaintiff was one of these “short-term” teachers and therefore was not entitled to the protection of the statute.
On March 19, 1973, plaintiff was notified by letter signed by the administrative assistant in charge of personnel that her contract would not be renewed. No reasons were given for the nonrenewal. Plaintiff then wrote a letter to the President of the Board of Trustees, defendant Pine, requesting a hearing before the board. Her request was denied.
While the plaintiff’s request was pending before the board, some students and teachers wrote letters to the board requesting that plaintiff be retained. Defendant McQueen, a member of the board, indicated that he considered such action an organized “letter writing campaign rather than an out-pouring of spontaneous support,” and it caused him to become “disenchanted” with plaintiff. He also indicated that he was “turned off” by her own request for a hearing. He expressed these views at a board meeting where plaintiff was discussed and informed the principal of Reno High School, where plaintiff was employed, that he would not be enthused about hiring her on a full-time basis.
In spite of this, the principal recommended plaintiff to fill a position to be left by a retiring teacher. At a board meeting held in August 1973, however, plaintiff’s employment was discussed and the board determined not to employ her. At that time, defendants Pine and McQueen apparently expressed the view that plaintiffs husband made too much money and, since he was the dean of the college of education at the University of Nevada, Reno, it would be wrong to hire his wife while there were so many graduates of that college who would not get jobs. An informal vote was taken, and only two members favored hiring plaintiff.
McQueen telephoned the principal of Reno High School reminding him of his opposition to the hiring of plaintiff. In addition, Superintendent Picollo met with the principal and encouraged him to fill any vacancies with teachers who had “one year only” contracts or who requested transfer from other schools. When vacancies finally did become available, plaintiff was not recommended.
Defendants have never alleged that those selected were more qualified than plaintiff. On the contrary, Superintendent Picollo informed plaintiff that she “had received excellent recommendations” and that her “capability as a teacher had never been questioned.” Both the head of the English department and the principal praised her teaching ability.
Plaintiff brought this action against the trustees in their official capacity and two of the trustees, Pine and McQueen, as individuals, claiming she was deprived of her job in violation of procedural due process and her substantive constitutional rights under the First and Fourteenth Amendments.
Defendants’ motion to dismiss was based on their claim that plaintiff was a substitute teacher and therefore according to the express provisions of Nev.Rev.Stat. § 391.-3115, she was not entitled to the non-employment provisions of Nev.Rev.Stat. § 391.3197. In addition, they claimed the action should have been dismissed because plaintiff’s complaint alleges that no more than two of the seven board members were motivated by constitutionally impermissible reasons.
The district court denied defendants’ motion to dismiss and granted limited summary judgment for the plaintiff. The court held that Nev.Rev.Stat. § 391.3197 applied to plaintiff and that this statute gave her a “property” interest within the meaning of the Fourteenth Amendment and that she was entitled to a hearing as a matter of due process and under Nevada law. A hearing was consequently ordered. Plaintiff thereupon filed a motion to amend the judgment urging that her termination should be considered null and void and that she should be granted reinstatement and back pay. Plaintiff’s motion was denied.
I
For the procedural rights of plaintiff under the due process clause of the Fourteenth Amendment to have been violated, she must have possessed a property interest as contemplated by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A teacher has a property interest in his or her job not only when he or she has formal tenure under an express provision of a statute or contract, but also when applicable rules or practices establish a “clearly implied promise of continued employment.” Board of Regents v. Roth, id. at 576-77, 92 S.Ct. at 2709.
Plaintiff claims that such a property interest was created by Nev.Rev.Stat. § 391.-3197. Under that statute a “probationary” teacher, although lacking formal tenure, is entitled to be reappointed from year to year unless specific “reasons” are found for non-renewal. The court below accordingly held that Nev.Rev.Stat. § 391.3197, as it existed in 1973, “gave to probationary teachers a form of limited tenure and a right to know and reply to the reasons for termination.”
Defendants contend that plaintiff was not a probationary teacher and therefore not entitled to the benefits and protections of Nev.Rev.Stat. § 391.3197. Rather, it is their position that she was a substitute teacher. They base this on the fact that the statute states that teachers are on “probation annually.” (Emphasis added.) From this, they conclude that a teacher becomes a probationary employee when granted an annual contract, rather than one for only a portion of a year as the plaintiff had in this case.
We find no merit in defendants’ contention. It cannot be said that merely because plaintiff was hired after the school year started that she did not have an annual contract.
We agree with the district court which held that defendants’ contention that plaintiff was a substitute teacher is erroneous as a matter of law. The court found:
“The undisputed facts show unequivocally that plaintiff was not a substitute teacher. She was a substitute teacher in the Washoe County School District from November 10,1972, until sometime in December or January, 1972 [sic], hired on a day-to-day basis as needed. On January, 29, 1973, plaintiff entered into a contract with the Washoe County School District to serve as a teacher from January 16, 1973, ‘for the remainder of the 1972 — 1973 school year only.’ The contract is in the standard form then in use for teachers and expressly provides: ‘The initial three years of service for the certificated employee shall constitute a probationary period during which time the employee may be dismissed at the discretion of the Board of Trustees pursuant to NRS 391.-3197.’ Plaintiff thus became a probationary employee of the School District subject to all the rights of every probationary employee. The fact that she was hired to perform the services of another certificated teacher who had resigned does not place her in the category of substitute teacher.” C.T. 268-69.
Irrespective of the procedural safeguards afforded by the Fourteenth Amendment due process, plaintiff was at least entitled to those procedural protections mentioned in Nev.Rev.Stat. § 391.3197. The statute provides for an advance notice of “the reasons for the recommendation to dismiss or not to renew the contract” and an “opportunity to reply.” The district court determined that the phrase “opportunity to reply” must be construed as contemplating a hearing since a “statement of reasons for termination and an opportunity to reply are meaningless unless there is some sort of hearing to resolve any issues which may be presented.”
Nev.Rev.Stat. § 391.3197 was amended on July 1, 1973, to provide that “prior to dismissal or nonrenewal, the teacher may obtain a due process hearing . . . .” With regard to this amendment, which occurred after plaintiff’s contract had not been renewed, the district court stated:
“As we interpret the law, the amendments made by the 1973 legislature with respect to NRS § 391.3197 were clarifying in character and did not materially change the rights of a probationary teacher.” R.T. at 252.
In McGee v. Humbolt County School Dist., 561 P.2d 458 (Nev.1977), the Supreme Court of Nevada determined that a probationary teacher “received all the process due” her when she “received notification of the reasons respondent [school district] was not rehiring her and was given an opportunity to reply at a public hearing." Id. at 459 (Emphasis added).
II
Plaintiff contends that in addition to a hearing, she is entitled to reinstatement and back pay. This contention presents a difficult issue in which “a careful weighing of all facts and circumstances” must take place. Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850, 853 (9th Cir. 1975). There must be a balancing of plaintiff’s interests in her wrongfully terminated teaching position against the possible disruption which her reinstatement may cause the school district. Id. at 852-53.
The Burton case points out that reinstatement and back pay are appropriately granted in situations involving racial discrimination and the legal exercise of free expression in a manner critical of the employer. It is also an appropriate form of relief when used to discourage school systems from taking similar action against other teachers in the future. Burton v. Cascade School Dist. Union High School No. 5, supra at 853-54. In this case, plaintiff claims that her termination was partially the result of her request for a hearing. If so, this situation is strikingly similar to the situation where the employee is terminated because of the legal exercise of free expression in a manner critical of the employer.
Plaintiff argues that a court-ordered hearing held years after her employment was terminated does not “make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). This argument is especially valid in light of Nev. Rev.Stat. § 391.3197 which expressly requires that the notice of reasons and opportunity to reply be provided “prior to formal action by the board.” This court has affirmed an order of a district court mandating officials to reinstate a college English instructor because his termination was in violation of his procedural due process rights under the Fourteenth Amendment. Stewart v. Pearce, 484 F.2d 1031 (9th Cir. 1973).
The Third Circuit has noted that a post-termination hearing is not an adequate substitute for a pre-termination hearing:
“But there is substantial difference in the position of the parties once termination has actually occurred. First, the employee, cut-off from the payroll, is greatly disadvantaged in his ability to pursue the hearing remedy. He may be forced by the necessity for survival to seek other employment which will foreclose the pursuit of reinstatement. Second, the institution will have made substitute teaching arrangements, thus introducing into the hearing consideration of the interests of other faculty members. This inevitability will increase whatever tendency may already exist for the hearing officials to defer to the administration’s decision. We agree with the district court, therefore, that a hearing after the fact is not the due process equivalent of the pre-termination hearing required by Perry v. Sinderman [408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570], supra. See [Skehan v. Board of Trustees of Bloomsburg State College] 3 Cir., 358 F.Supp. [430] at 434-35.” Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 38 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975).
An important consideration is the time lag between the wrongful termination and the hearing. In the Skehan case, supra, the Third Circuit noted that there is probably a greater likelihood that the original termination decision will be upheld if the hearing is held long after the event than if a hearing is held before the termination becomes effective. The Eighth Circuit recently held that a post-termination hearing held two years after the termination did not satisfy the requirements of due process. Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977). In that case, plaintiff, a former high school teacher, was terminated without a hearing when defendants discovered that she, a single woman, had become pregnant. In the court-ordered hearing held more than two years after she was terminated, defendants voted to confirm their earlier action.
Not all cases that have found violations of procedural due process and where hearings have been ordered have granted reinstatement and back pay, however. E. g., Burton v. Cascade School Dist. Union High School No. 5, 512 F.2d 850 (9th Cir. 1975); Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969). The disadvantage to the school district should be carefully considered.
The district court’s order was as follows:
“1. Defendants’ motion to dismiss is denied.
“2. A summary judgment will be entered in favor of plaintiff and against defendants requiring that defendants shall, within a reasonable time, accord to plaintiff the due process hearing contemplated by the foregoing opinion. The Court reserves jurisdiction to make such further orders in the premises as may be required to accord to plaintiff the full benefit of the rights to which she is entitled and will entertain supplemental pleadings if they should become necessary. It is the view of the Court that plaintiff’s rights and remedies are primarily to be worked out by plaintiff and the Board of Trustees of the Washoe County School District except to the extent that the Court has been required to interject itself into the situation in order to recognize and enforce plaintiff’s rights to due process of law.
“Dated: December 31, 1975.” C.T. at 276.
We affirm that judgment.
As will be noted, the district court has reserved jurisdiction except insofar as the right of the plaintiff to a due process hearing. We note that this, although not mentioned explicitly, necessarily includes reinstatement and back pay. Because these claims have not been ruled upon, we defer our consideration thereof until the district court has ruled and that ruling, whatever it is, is properly before us.
Judgment accordingly.
. The statute at the time the plaintiff received notice of the termination of her probationary contract, Nev.Rev.Stat. § 391.3197 provided:
“1. Teachers employed by a board of trustees shall be on probation annually for 3 years, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board of trustees. A teacher employed on a probationary contract for the first three years of his employment shall not be entitled to be under the provisions of NRS 391.311 to 391.3196, inclusive.
“However, prior to formal action by the board, the probationary teacher shall be given the reasons for the recommendation to dismiss or not to renew the contract and be given the opportunity to reply.”
The 1973 Legislature amended section 391.-3197 to provide as follows:
“391.3197 Probationary employees; Length of Probation; dismissal, refusal to reemploy; due process hearing.
“1. Teachers employed by a board of trustees shall be on probation annually for the first 3 consecutive years of employment unless on an approved leave of absence, provided their services are satisfactory, or they may be dismissed at any time at the discretion of the board.
“2. Any certificated employee who has achieved postprobationary status in a Nevada school district and is contracted in a second subsequent school district shall have a probationary period not to exceed 2 consecutive years of employment in that district.
“3. Prior to dismissal or nonrenewal, the teacher may obtain a due process hearing before the board or, at the discretion of the board, a hearing before a hearing officer or hearing commission as set out in NRS 391.-311 to 391.3196, inclusive. The appeal provisions of chapter 233B of NRS do not apply for a probationary teacher.
“The amended section became effective on July 1, 1973.
“Section 391.3197 was expressly made a part of plaintiffs contract with the Washoe County School District.” C.T. at 249
. Plaintiffs employment contract contained a specific reference to this statute.
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
HERZOG v. KRONMAN.
No. 6513.
United States Court of Appeals for the District of Columbia.
Argued Jan. 10, 1936.
Decided Feb. 17, 1936.
Mark P. Friedlander and Robert I. Silverman, both of Washington, D. C., for appellant.
M. D. Rosenberg, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
PER CURIAM.
Appellant, whom we shall call plaintiff, brought an action which he calls an action for “slander of title” against appellee, whom we shall call defendant, for seven hundred odd dollars actual damages and twenty-four thousand odd dollars exemplary damages. The facts alleged in the declaration are that plaintiff inherited a certain parcel of land from his father on which there was a debt of $14,000.00, evidenced by a note secured by mortgage on the land; that after his father’s death he qualified as executor, and, during the period of administration, defendant, the holder of the note, filed claim in the probate court of the .District of Columbia, in which he stated he was the owner of the note, that the same had been protested for nonpayment, and that he held no security for same. Plaintiff copied into his declaration the docket entry in the probate court, and this entry showed the name and residence of the claimant, the amount and nature of the claim; and, under the latter heading, that it was a “real estate note” assumed by plaintiff’s father and bore interest at 6 per cent, from a period a little less than a month prior to the docketing. The allegation is that the statement in the claim that the note had been protested and that there was no security for the same was defamatory because the fact was the note was not then due; and, as a result of the filing of the claim — as due and unsecured — “plaintiff was put to great inconvenience and was vexed, harrassed and put to divers and great expenses,” etc.
The actual expenses alleged are the cost for an additional year of the executor’s bond and attorney fees and court costs, but the total is under the jurisdictional amount entitling plaintiff to sue in the Supreme Court of the District of Columbia; and nothing of fact is specifically alleged to sustain the claim of exemplary damages. The lower court, in dismissing the action, said that nothing was stated in the declaration which directly or by innuendo disparages title to the property in question.
Admitting that the words used in the claim filed in the probate court were malicious — which, however, we think does not in fact appear — there is nothing to show plaintiff sustained special damages as the natural and proximate consequences thereof; and there is certainly nothing in the docket entry made by the clerk, as the result of the filing of the claim, calculated in the ordinary course to cause damage to the title to the land, special or otherwise. There is no charge that the sale of the property was defeated by the alleged libel, or that the property was in any respect injured as the result of filing of the claim. And we know of no rule of law under which plaintiff could recover exemplary damages, in an action of this nature, without charging and proving that the libel prevented the sale or leasing of the land or otherwise damaged the title.
To maintain the action, slander of title, it must be charged and shown that the words are false and were malicious, and that the damage alleged naturally and reasonably resulted; and, if special damage is alleged, it must be claimed and facts must be alleged on which it may be sustained. That an action in case will lie for recovery of actual damages, if willfully and intentionally caused, will not help plaintiff here, for in that case because of lack of jurisdictional amount the action must have been brought in the municipal court.
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_direct2
|
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 defendant. 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.
Errol B. RESNICK, Plaintiff-Appellant, v. UNITED STATES PAROLE COMMISSION, et al., Defendants-Appellees.
No. 86-1509.
United States Court of Appeals, Tenth Circuit.
Dec. 21, 1987.
Rehearing Denied Feb. 23,1988.
Cyd Gilman, Asst. Federal Public Defender, D. Kan. (Charles D. Anderson, Federal Public Defender, Wichita, Kan., with her on the brief), for plaintiff-appellant.
Leon J. Patton, Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., Alleen S. Castellani, Asst. U.S. Atty., D. Kan., Topeka, Kan., with him on the brief), for defendants-appellees.
Before MOORE, BALDOCK and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
Errol B. Resnick, an inmate in the United States Penitentiary, Leavenworth, Kansas, filed a petition for habeas corpus in the United States District Court for the District of Kansas against the United States Parole Commission, challenging a decision of the Commission which held that Resnick would continue to stay in prison for the time being and that he would not be afforded another parole hearing until April, 1992. 28 U.S.C. § 2241. The district court issued a show cause order, and the Commission filed an answer and return, to which Resnick filed a traverse. Based on the pleadings, and attachments thereto, the district court denied Resnick’s petition and dismissed the action. Resnick appeals.
Resnick is presently incarcerated in the United States Penitentiary, Leavenworth, Kansas, pursuant to four sentences imposed by federal district courts in the State of Florida. The sentences thus imposed are to be served consecutively, and they total 34.5 years. Resnick has now served approximately 15 years under those consecutive sentences. Specifically, Resnick was sentenced on federal charges as follows:
1. 17 years by the United States District Court for the Southern District of Florida on November 2, 1971, upon a conviction for a narcotics conspiracy;
2. 10 years, to be served consecutively to the 17-year sentence referred to in paragraph 1, by the United States District Court for the Middle District of Florida on December 6, 1972, upon a conviction for unlawful melting of United States coins;
3. 2 years and six months, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on January 24, 1973, upon a conviction for illegal sale of firearms; and
4. 5 years, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on September 12, 1973, upon a conviction for conspiracy to escape and attempted escape.
In addition to the four sentences mentioned above, Resnick is serving two life sentences imposed by state courts in Florida for hiring others to commit two murders. The Florida sentences were to be served concurrently with the federal sentences now being served.
Resnick had his initial hearing before examiners of the United States Parole Commission on August 25, 1981. The examiners assigned an offense severity rating for each offense and aggregated those ratings to result in a greatest II rating, indicating that Resnick’s offenses were very serious. As concerns Resnick’s salient factor rating, the examiners fixed that at 10, indicating that he was a good parole risk. In this regard, the examiners noted that Resnick, while incarcerated, had earned a bachelor’s degree and a master’s degree, and was working toward a doctorate degree. Resnick was also highly recommended for parole by a former assistant educational director at the penitentiary.
The examiners referred Resnick’s case to the National Commissioners on September 8, 1981, for original decision because of the unusual sophistication of the crimes involved and because of the possibility of an ongoing criminal conspiracy. On October 16, 1981, the National Commissioners determined that it needed more information concerning the scope of the offenses. A letter was written at that time by the National Commissioners to the U.S. Probation Office requesting more information. The matter was subsequently referred back to the examiners for further hearing, at which time information obtained from the United States Probation Office, as well as other matters, was to be considered. Resnick was informed on February 23, 1982, which was later corrected on March 2, 1982, that the hearing would be held on April 27, 1982.
At the hearing on April 27, 1982, the examiners again gave Resnick a salient factor score of 10, and an offense severity rating in the greatest II category. The case was again referred to the National Commissioners with a recommendation that release of Resnick at that time would depreciate the seriousness of his several offenses, which recommendation noted Res-nick’s state criminal convictions, as well as the four federal convictions, and recommended that Resnick be kept in custody until April 1, 1992, when a new parole hearing would be held. On June 4, 1982, the National Commissioners adopted the recommendations of the hearing examiners. Resnick’s subsequent appeal to the National Appeals Board was denied, whereupon Resnick instituted the present proceeding.
The present appeal raises two issues: (1) The offenses for which Resnick was convicted and sentenced having occurred in 1971, 1972, and 1973, does the application of statutes and regulations in effect at the time of Resnick’s parole board hearings in 1981 and 1982 violate the ex post facto provision of the United States Constitution, Article 1, Section 9, Clause 3? (2) Were Resnick’s due process rights violated by arbitrary and capricious action on the part of the Commission?
Ex Post Facto
Article I, Section 9, Clause 3, of the Constitution provides that, “No Bill of Attainder or ex post facto law shall be passed.”
18 U.S.C. § 4206(a), in effect at the time of Resnick’s parole hearings, provides as follows:
(a)If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law;
(2) that release would not jeopardize the public welfare;
subject to the provisions of subsections (b)and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released.
# # * # * *
(c)The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.
In denying Resnick present parole and continuing the matter for a 10-year reconsideration to April, 1992, the National Commissioners spoke as follows:
REASONS:
Your offense behavior has been rated as Greatest II severity because you were involved in melting $9,000 in U.S. coins, sold firearms without filing the appropriate ATF forms, smuggled approximately 900 lbs. of marijuana and you had two individuals murdered (as evidenced by your Florida conviction) in conjunction with the marijuana offense. Your salient factor score (SFS-81) is 10 (see attached sheet). You have been in custody a total of 130 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a minimum of 52 months to be served before release for cases with good institutional program performance and adjustment. In addition, you attempted to escape from a secure facility and guidelines established by the Commission for that offense indicate a customary range of 6-12 months to be added to your minimum range of 52 months. Your combined minimum range is 58 months. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon a comparison of the relative severity of your offense behavior with the offense behaviors and time ranges specified in the Greatest I severity category.
In rendering this decision, the Commission also noted that the victims were murdered in an especially brutal fashion; one victim was mutilated by being covered with lye and the other thrown out of a car and left by the roadside.
Also, during the attempted escape, a hostage was taken.
In essence, then, the National Commissioners denied Resnick present parole and postponed reconsideration to April, 1992, because his present release “would depreciate the seriousness of ... [Resnick’s] offense behavior” which formed the basis for his four federal convictions. In making that decision, the Commission also “noted” that in each of the homicides for which Resnick was convicted of murder under Florida law the victims were treated in especially brutal manner, one victim being mutilated when covered with lye and the other thrown out of a car and left by the roadside.
Resnick’s ex post facto argument, as we understand it, is that in denying parole the Commission concluded that to release Resnick now would, in the language of 18 U.S.C. § 4206(a)(1), “depreciate the seriousness of his offense behavior,” and that such language did not appear in 18 U.S.C. § 4203 (enacted in 1948) (the predecessor statute to 18 U.S.C. § 4206(a)(1)), which was in effect at the time of his four federal convictions. In other words, counsel argues that at the time Resnick suffered his four federal convictions, parole could not have been denied on the ground that to grant parole would “depreciate the seriousness of his offense behavior,” and that the statute in effect at the time of his parole hearing which permitted denial of parole on that ground violated the ex post facto provision. We do not agree with Resnick’s premise that in 1971-73 parole could not be denied, notwithstanding any guidelines, on the ground that to grant parole would have depreciated the seriousness of the underlying offenses.
In Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981), a case involving a Florida statute which reduced the “gain time” for good conduct and obedience to prison rule, the Supreme Court held that for a criminal or penal statute to be ex post facto it must be retrospective, i.e., it must apply to events occurring before its enactment and it must “disadvantage” the person affected by it.
The district court in the instant case concluded that although § 4206(a)(1) was applied retroactively, that such application did not “disadvantage” Resnick. We agree. The enormity or magnitude of the offenses which form the basis for a prisoner’s incarceration has always been a basis for denying parole, notwithstanding guidelines. And this is true even though the predecessor statute to § 4206(a)(1) did not contain the “depreciate the seriousness of the offense” language. The predecessor statute did provide that parole could be granted if it appeared that there is a reasonable probability that the prisoner will live and remain at liberty without violating laws, and if the Commission believes that “such release is compatible with the welfare of society.” In Wiley v. United States Board of Parole, 380 F.Supp. 1194 (M.D.Pa.1974), the court held that denying parole on the ground that to grant parole would “depreciate the seriousness of the offense” came within the language of the predecessor statute, commenting that the seriousness of the offense is a factor which is related to and could be “determinative of the question of whether the prisoner’s release is compatible with the welfare of society.” We agree with such reasoning. Indeed the enormity and magnitude of the underlying offenses for which the prisoner is incarcerated has always been a most important factor in determining whether an inmate should be paroled. And we agree that “early parole” in such a case might tend to “depreciate” the seriousness of the inmate’s criminal behavior.
We regard Resnick’s ex post facto argument to be directed mainly to the statute above referred to, § 4206(a)(1). However, counsel does also complain that the guidelines applied in Resnick’s parole hearings in 1981 and 1982 also violated the ex post facto clause. We fail to see just what guidelines were applied which “disadvantaged” Resnick. Indeed, the thrust of Res-nick's entire argument is that the guidelines in effect in 1981-1982 suggested Res-nick’s early parole release and that the Commission erred in going outside the guidelines. In this general connection, however, we note that the decided weight of authority is that guidelines of this sort, being guidelines only, are not subject to the ex post facto prohibition. Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir.1987); Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir.1986).
Due Process
We fail to see that Resnick’s due process rights were violated in either of the two proceedings before the Commission. He was given notice under the then existing statute regulations and his request for documents was belated, untimely, and nonspecific.
Nunez-Guardado v. Hadden, 722 F.2d 618 (10th Cir.1983) has present pertinency. In that case we upheld Commission action which departed from the guidelines and fixed the inmate’s parole date above the guidelines’ recommended date of release, stating that “judicial review” of Parole Commission action is “narrow” and that the test is whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion. We also noted that “prison conduct” is only one of the factors to be considered in parole release decision. We further held that consideration by the Commission of criminal acts other than the one count to which the defendant had pleaded guilty after plea bargaining was proper. And having held that the Commission’s action was not arbitrary or capricious, or any abuse of discretion, but was based on “good cause” and was non-viola-tive of due process, we declined to reach the issue of whether the federal parole statutes create a liberty interest.
In sum, although Resnick had attempted escape in Florida, he apparently had a very favorable record in the penitentiary in Leavenworth, Kansas. However, the Commission concluded that the magnitude of the federal crimes for which Res-nick had been convicted, coupled with the two state convictions for murder, which were apparently related to his federal conviction for drug conspiracy, amounted to a “good cause” for denying present parole, since to grant present parole would “depreciate” the seriousness of his offenses. Such, in our view, constitutes a “rational basis” for the Commission’s action. Nunez-Guardado, 722 F.2d at 623; Solomon, 676 F.2d at 290.
Judgment affirmed.
. In Dunn v. U.S. Parole Commission, 818 F.2d 742, 744 (10th Cir.1987), the court held that a district court had subject matter jurisdiction over a habeas corpus proceeding despite the fact that the Parole Commission rather than the warden of the prison was named in the petition. The court reasoned that: “[ajlthough the Leavenworth warden cannot be said to be indifferent to the resolution of Mr. Dunn’s challenge, only in the most formal sense does he control whether Mr. Dunn is released ... [r]ather, ... the Commission directly control(s) whether Mr. Dunn remains in custody."
. Resnick earned his bachelor’s degree in psychology, his master's degree is in the field of numismatics, and he is working toward a doctorate in finance.
. In Solomon v. Etsea, 676 F.2d 282, 287 (7th Cir.1982), the Seventh Circuit stated that the "magnitude” of a prisoner’s individual crime may be the "good cause” referred to in 18 U.S.C. § 4206(c) for which the Commission may deny parole notwithstanding the guidelines and that "[i]t is the extenuating circumstances of the particular offense, not the nature of the violation categorizing him in the guidelines, which must make up the necessary good cause."
. The predecessor statute, 18 U.S.C. § 4203(a) stated: "If it appears to the Board of Parole from a report by proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.”
. 28 C.F.R. § 2.55(a) provides: "at least 60 days prior to a hearing scheduled pursuant to 28 C.F.R. 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_numappel
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
Vella Dee JOHNSON, Plaintiff-Appellee, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Defendants-Appellants.
No. 74-1377.
United States Court of Appeals, Tenth Circuit.
Argued Jan. 23, 1975.
Decided April 7, 1975.
Maynard I. Ungerman of Ungerman, Grabel & Ungerman, Tulsa, Oklahoma (Alan M. Levy of Goldberg, Previant & Uelmen, Milwaukee, Wis., on the brief), for defendants-appellants.
Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The cause which is here appealed was originally an action seeking to recover a surviving widow’s pension. This was allegedly derived from the employment of her husband who had been a driver for Red Ball, Inc. and a member of Teamsters Local 523. The action was originally filed in state court and removed to federal district court for the Northern District of Oklahoma. Following a trial judgment was entered for plaintiff in the amount of $15,000. The Pension Fund is the appellant.
Under the terms of the collective bargaining agreement which covered him, the company paid $6.00 per week to the Pension' Fund for each employee. At the time of Johnson’s death, the company had made payments for 128 weeks, almost two and one-half years.
A booklet which was furnished to plaintiff’s husband explained the pension plan (pp. 1-28) and also included the text of the plan itself (pp. 29-44). Defendant now contends that under the terms of the Plan, plaintiff’s entitlement was limited to a death benefit of $320. Plaintiff maintains she is entitled to a survivor benefit of $250 per month for 60 months ($15,000). Her contention is founded not on the words of the plan but on several statements in the introductory explanation of the plan which she contends are ambiguous and on a letter dated August 25, 1967 sent to Johnson by the union assistant business manager.
The plan itself is not ambiguous. It allows for monthly survivor benefits only if certain specified payments have been made into the fund for the employee. Otherwise, it limits entitlement to the death benefit. The conditions for qualification for survivor benefits are as follows:
If the employee dies after his Normal Retirement Date . . . and if such employee or pensioner dies after his last employer has made contributions on his behalf under a collective bargaining agreement providing for contributions at the rate of $7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter, a survivor benefit shall be payable to his surviving spouse.
Art. Ill, § 9(B).
If contributions of $7.00 and $8.00 have been made, the survivor is entitled to $250 per month; if contributions of $8.00, $9.00, and $10.00 have been made, the survivor is entitled to $300 per month.
In the explanation portion of the booklet, the survivor benefit is described briefly:
$135 per month payable to spouse or dependent children under 23 years of age for five months upon death of active member. $250 or $300 per month payable to spouse for balance of five years upon death of normal retirement pensioner. (Applicable only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.)
(R. 86, p. 7 of booklet).
Later the explanation recites that if death occurs after the employee becomes eligible for normal retirement, “the amount of the monthly Survivor Pension is the Normal Pension payable for 60 months to your surviving wife (or husband).” (R. 97, p. 18 of booklet). On the same page it states that the surviving wife is eligible for the pension if the last employer contributed “under an agreement providing for payments of $5-$6 — $7—$8 or $8-$9-$10 over a three year period.”
The letter relied on is that of August 1967 to Johnson from Nye, the assistant business manager, which stated that the $6 per week payment would entitle each employee to a pension of $250 per month for five years and $110 per month thereafter. According to the booklet explanation, payments by the employer of $5— $6-$7 — $8 per week over a three year period entitle the employee to the pension Nye said would be available. The Plan provision makes clear that $6 per week is not sufficient for the $250 per month pension. The Nye letter says nothing about survivor benefits.
At the trial Mr. Murtha, the administrator of pension benefits, testified that the Trustees of the Fund have never granted a survivor benefit where the employer only contributed $6 per week. He also testified that any amendments to the plan had to be approved by the Internal Revenue Service.
Plaintiff contends that she is entitled to rely on the general description of the plan contained in the introductory pages of the booklet her husband received at the plan’s inception. She further contends that this description is ambiguous and that the ambiguities ought to be resolved strictly against the scrivener. The trial court accepted these contentions and held that the payment of $6.00 per week by her husband’s employer placed her in the “$5-$6-$7-$8” category which provided for survivor benefits of $250 per month for 60 months.
This holding is clearly erroneous. Unfortunately for plaintiff, neither the plan nor its description is ambiguous. The first mention of survival benefits occurs at the front of the booklet under the heading “your pension in brief.” The description states that the survivor benefit is applicable “only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.” Immediately adjacent to this is a description of the lump sum benefit, which is applicable “to all classes other than $5-$6-$7-$8 and $8-$9-$10.” The descriptive portion of the booklet does not precisely delineate the composition of these two classes, but the plan itself (which follows the description) is explicit in this regard. It declares that survivor benefits are payable only if the employer contributed “$7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter.”
The description in the front of the booklet does not expressly represent that employer contributions give the worker the right to be in one of the two classes of surviving beneficiaries; it could, however, lead the ordinary, unwary reader to this belief. But the plan clarifies this vagueness so that if one had been confused after reading the description (regarding the legal result of the $6 per week contribution), an examination of the plan itself serves to dispel any such belief, for it is clear from a reading of the plan that in order for a survivor to have entitlement there must have been employer payments in increasing amounts over a three year period.
Gould v. Continental Coffee Co., 804 F.Supp. 1 (S.D.N.Y.1960) and Dictaphone Corp. v. Clemons, 488 P.2d 226 (Colo. App.1971) are cited by the plaintiff-ap-pellee for the proposition that where there is a variance between the general description and the plan itself it is to be construed against the draftsman. These cases are, however, different because the plans themselves were not in those instances submitted to the beneficiaries. Only the summaries were given. It is not, therefore, surprising that the courts in those cases held that the employees had a right to rely on the summaries.
A reading of the plan makes clear the belief that a survivor’s pension is paid to anyone whose employer paid $5-$6-$7 and $8 and that a higher pension is paid to those whose employer paid $8-$9 and $10.
The letter from Nye to plaintiff’s husband is somewhat misleading. However, it does not mention survivor pensions. The mistake in that letter was made in saying that plaintiff’s husband would receive upon retirement $250 each month for five years and $110 per month thereafter. This is the amount that is received from someone who is in the higher classification of employer payments. But there could have been no reliance on that letter for the purpose of survivor benefits. Although the memorandum which was sent to the union and which is relied on by appellant did mention survivor benefits, read in its entirety it was incapable of misleading anyone.
Finally, it cannot be said that the plan itself is positively deceptive. True, it is much less than perfect in that it presents a picture of glowing generosity, whereas for the $6 per week the surviving widow receives only a small percentage of the amount paid in. This is indeed a poor plan which ought not to be available to an employer. Moreover, if there is to be a description of a plan of this kind it should describe not only the benefits but should also note the deficiencies.
Plaintiff finally urges that the appellant has violated the Welfare Pension Plan Disclosure Act, 29 U.S.C. § 301 et seq. This requires a complete description of pension plans like the one involved here. Even though the, description together with the plan is unsatisfactory, we cannot say that the appellee has violated this Act.
We are constrained to hold that the judgment of the district court is clearly erroneous from the standpoint of the facts found and must be reversed. The cause is remanded to the district court with directions to vacate the judgment and dismiss the action.
. A check, dated April 5, 1972, in the amount of $320 was tendered to Mrs. Johnson, but she refused it.
. Nye admitted at the trial that he “goofed” in including a description of the pension in his letter. It had always been his understanding that interpretation of the benefits would be left to the Pension Fund.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_appel2_8_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 appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Max FINKEL et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 5863.
United States Court of Appeals First Circuit.
Heard Nov. 6, 1961.
Decided Nov. 21, 1961.
James T. Waldron, Fall River, Mass., with whom John T. Farrell, Jr., and Clarkin & Waldron, Fall River, Mass., were on brief, for petitioners.
Michael K. Cavanaugh, Atty., Dept, of Justice, with whom John B. Jones, Jr., Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Attys., Dept, of Justice, Washington, D. C., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
Taxpayer, who has been in the fish business for many years, was a stockholder in a fish meal corporation, New Bedford Fish Products Corporation, hereinafter Products, and in a fish trucking concern, Meso, Inc. Fish meal processing is a potential nuisance, and Products held the required municipal license. In 1952 its plant was temporarily shut down because business became unprofitable. In 1956 it was sold. Because the license was not transferable, the purchaser could not simply buy the assets, but required the stock. Prior to the sale, taxpayer had loaned $42,874 to Products and $12,-216 to Meso, and other stockholders had made similar loans. Products was substantially indebted to Meso. The purchaser demanded that Products be free from debt after transfer, except to the extent that indebtedness might be represented by notes, in which event the notes were to be transferred to her without recourse. In response, Meso, whose stockholders and creditors were the same as Products’, cancelled its indebtedness. This obligation had been Meso’s sole asset. Products issued notes to its remaining creditors, including taxpayer, which were thereupon endorsed over to the purchaser. In return, the purchaser tendered cash and notes totalling $75,000, of which taxpayer received $21,562.
Taxpayer charged off his Products and Meso stock in his 1956 return as long-term capital losses. No question arises as to this. Next, he sought to deduct the debt owed him by Meso as a business bad debt becoming worthless during the taxable year. The government claims that it was not a business debt. This involves considerations that we need not go into. But the purchaser paid enough for Products so that a partial payment could have been made on its indebtedness to Meso. Accordingly, Meso’s total relinquishment of the indebtedness was a voluntary capital contribution by persons, including taxpayer, who were at once its stockholders, its creditors, and stockholder-creditors of Products. It was, in fact, so entered on Products’ books. In effect taxpayer got more out of Products and less, i. e., nothing, out of Meso, but this was the result of his own action and did not entitle him to claim, vis-a-vis the government, that the debt owed him by Meso was worthless. Raffold Process Corp. v. Commissioner, 1 Cir., 1946, 153 F.2d 168; Liggett’s Estate v. Commissioner, 10 Cir., 1954, 216 F.2d 548; Bratton v. Commissoner, 6 Cir., 1954, 217 F.2d 486. We are not concerned with what might have been the situation had Meso received a pro rata dividend on its indebtedness as an ordinary creditor of Products.
Similarly, taxpayer cannot assert what might have happened had he not sold the notes he received from Products against his indebtedness. Obviously, he cannot— and does not — say that he was paid for the stock and not for the notes. All he can claim is a loss. Levy v. Commissioner, 2 Cir., 1942, 131 F.2d 544, cert. den. Levy v. Helvering, 318 U.S. 780, 63 S.Ct. 858, 87 L.Ed. 1148; Graham Mill & Elevator Co. v. Thomas, 5 Cir., 1945, 152 F.2d 564; Von Hoffman Corp. v. Commissioner, 8 Cir., 1958, 253 F.2d 828; cf. Mitchell v. Commissioner, 2 Cir., 1951, 187 F.2d 706. This he has been allowed.
Judgment will be entered affirming the decision of the Tax Court.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Plaintiff-Appellee, v. David Frank DUNCAN, a/k/a Harold Celline, Defendant-Appellant.
No. 89-1087.
United States Court of Appeals, Seventh Circuit.
Argued June 7, 1989.
Decided Feb. 22, 1990.
Frederick J. Hess, U.S. Atty., Stephen B. Clark, Joel Merkel (argued), Asst. U.S. At-tys., Office of the U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Robert G. Duncan (argued), Kansas City, Mo., for defendant-appellant.
Before COFFEY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
COFFEY, Circuit Judge.
David Frank Duncan, also known as Harold Celline, appeals from a conviction for knowingly receiving visual depictions of minors engaging in sexually explicit conduct, transported and shipped in interstate and foreign commerce, in violation of 18 U.S.C. § 2252(a)(2). We affirm.
I
In 1986 the United States Customs Service established a national undercover operation code named “Operation Borderline” to target people involved in the importation of child pornography into the United States. As part of Operation Borderline, the Customs Service, in cooperation with the Canadian Customs Service, established a false child pornography distribution operation located in Hull, Quebec, Canada. Locating the operation's office in Canada was important to the credibility of the operation because most child pornography distributors are located outside of the United States.
Operation Borderline’s child pornography enterprise, operating under the name Pro-duit Outaouais, designed a non-illustrated brochure offering for sale sets of photographs depicting minors engaged in sexually explicit conduct Customs had seized in prior investigations. The brochure itself was a combination of descriptions of photographs contained in other brochures previously disseminated by actual distributors of child pornography. For example Customs’ brochure, published in both English and French, included several paragraphs taken directly from a former child pornography distributor in Stockholm, Sweden:
“Hello Lolita Collector: You have been recommended from a reliable contact in which you have done business with. Because you are a trusted and proven customer, we offer you these special selections.
As a serious collector, you are aware of the world-wide ban and intense enforcement on this type of material. Accordingly, what was legal and commonplace is now an “underground” and secretive service in order to continue serving collectors.
This environment forces us to take extreme measures to protect us and to ensure your delivery. We have been serving customers the world over for many years and we are continuing to do so. To continue, we offer these selections and delivery on the following basis only.”
The next part of the brochure was taken directly from a former distributor of child pornography in West Germany:
“The following list of materials is not all we have to offer. You will receive additional lists, unless you choose not to, at a later date.
FOTOS: With boys and girls in sex action ... At the moment, the following magazine foto sets are available:
Lolita No. 31, 43, 51, 52, 55
Incest No. 1, 2, 4 and 5
School Girls and Boys
Linda and Patty
Lolita Colours Special No. 13, 18, 19 and 20
Lolitas Who Love Pissing
Nymph Lover No. 4 and 6
Loving Children No. 3
Lesbian Lolita
Liza and Her Dog
Sweet Linda”
An additional section of the brochure offered COQ foto sets. COQ formerly was the largest distributor in the world of male homosexual child pornography. The section read as follows:
“COQ’s favorites: Young Boys in Sex Action Fun:
# jjs ¡js ■}{ * :¡c
Loverboys # 1, 2
Joe & His Uncle
Miniboys # 2, 4, 7
* * it * * *
Joyboy # 4, 5”
The brochure contained an order form which could be torn from the rest of the brochure and mailed to the company to obtain desired photo sets.
Customs agents sent this brochure to around 2,000 people whose names were obtained from Customs’ lists of persons from whom child pornography had been seized and from a list of individuals who stated preferences for particular types of child pornography in a Postal Inspection Service survey, that had been conducted under the false name of “Crusaders for Sexual Freedom.” Because the name “Harold Cel-line” could be found on both of these lists, Celline was sent a copy of the brochure. About 215 replies to the brochure were received, including one from “Harrald Cel-line.” Celline’s reply consisted of the brochure’s order form containing his request for four sets of twelve photographs that were entitled: “Joe and His Uncle,” “School Girls and Boys,” “Chicken No. 11” and “Miniboys No. 7.” The order form requested that the materials be shipped to Harrald B. Celline at 306A South Oakland in Carbondale, Illinois. Enclosed with the order form was a check for $60, payable to Produit Outaouais, drawn on the account of David F. Duncan, Southern Illinois University, Department of Health Education. The memo portion of the check noted “For Harry Celline.”
In accordance with Operation Borderline’s standard procedures, the Canadian Customs Service forwarded Celline’s order to United States Customs in Chicago. Customs personnel in Chicago thereupon prepared Celline’s order from Customs’ stock of previously seized child pornography. Customs agents placed the 48 photographs Celline had ordered in an envelope and hand carried the envelope to Ottawa, Ontario, Canada. From there the envelope was sent from “Revenue Canada Customs/Excise” to a Special Customs Agent in St. Louis, Missouri. St. Louis based Special Customs Agent, Brett Braaten took the material from DHL’s St. Louis office on May 29, 1987. At about the same time, Customs in Chicago caused a form letter to be sent to Celline, purportedly from Pro-duit Outaouais, requesting the best day and time for delivery of Celline’s order. Celline replied that any day would be acceptable, that delivery should take place between 10:00 a.m. and 1:00 p.m., and that he would be out of town until June 18, 1987. On June 18, 1987, prior to delivering the material to Celline, Customs obtained a warrant to search Celline’s home.
On June 23, 1987, Agent Braaten delivered the requested child pornographic materials to Celline’s home address while disguised as a DHL delivery man. The defendant, David F. Duncan, answered the door when Braaten knocked on it, received the package, and signed a delivery receipt for it in the name of D.F. Duncan.
About ten minutes after the photo sets were delivered, Braaten and several other agents executed the search warrant at Duncan’s residence. The government agents seized 47 of the 48 originally delivered photographs, as well as dozens of other magazines and photographs. Among the confiscated child pornographic materials were: 163 pictures of boys under the age of 18 involved in sexually explicit conduct and 20 magazines containing males under 18 years old engaged in sexually explicit conduct. Seven of the magazines had on their covers the inscription “COQ,” and one of these magazines was entitled “Joyboy.” As noted previously, COQ materials were among those Customs offered in the Produit Outaouais brochure, likewise “Joyboy” was also one of the titles listed in this brochure. In addition, the agents seized an illustrated child pornography brochure and an accompanying order blank. The order blank had been signed “Dave Duncan” and reflected an order for five items that corresponded to the following descriptions in the brochure: (1) Twelve Photos — The Best Place for a Boy to Masturbate is Out in the Open; (2) A Group of Six Photos — Oral and Anal Sex Between Two Handsome Suntanned Sexual Maniacs; (3) Ten Photos — Papiet and a Friend — A Country Sex Duet with Stallion Cocks; (4) Papiet — Fifteen Photos — The Laughing Farm Boy Radiating Happiness and Health; (5) Andy — Five Photos — The City Boy Who Turned Punk Possesses Mystic Erotic Aura. The order blank was entitled “COQ International Photo Sets,” and listed a Holbaek, Denmark address.
At the time of the search, Duncan gave a statement to Agent Braaten after Duncan had been read his Miranda rights from a pre-printed form and had an opportunity to read a printed statement of his Miranda rights. Thereafter Duncan signed a written waiver of his Miranda rights. During questioning Duncan stated that the items delivered had been misrepresented, as he had thought the items would be “naturist” pictures rather than child pornography. Duncan also stated that he had previously used the name Harry Celline as a pen name in writing and that he used it in ordering materials because nudism is not acceptable in America. Duncan also admitted that Customs had previously seized items he had ordered. Duncan further admitted that he had received items from a company in Holbaek, Denmark in 1982.
II
Duncan challenges his conviction on the ground that the government’s activities constituted “outrageous governmental conduct” violative of due process. In United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2nd Cir.1980), the United States Court of Appeals for the Second Circuit held that “under Rule 12(b)(2) [of the Federal Rules of Criminal Procedure], this defense should normally be raised prior to trial, so that the trial court can conduct a hearing with respect to any disputed issues of fact.” We agree with the Second Circuit that an outrageous governmental conduct defense must be made the subject of a pre-trial motion under Rule 12(b)(2). Not only did Duncan fail to make the outrageous governmental conduct defense the subject of a pre-trial motion, but in fact he failed to raise it in the trial court. In United States v. Fuesting, 845 F.2d 664, 670 (7th Cir.1988); we noted the limited review that can be accorded an argument in a criminal case that is raised for the first time on appeal:
“[Fuesting’s] argument was raised for the first time on appeal, and while it is within our discretion to resolve such issues, our review is limited to the strict standards of the plain error doctrine of Fed.R.Crim.P. 52(b). Under that doctrine, only an error which would result in an ‘actual miscarriage of justice’ would support reversal of Fuesting’s conviction.”
(Citations omitted). Thus, Duncan’s failure to bring his alleged outrageous governmental conduct defense to the district court’s attention means that we review this question under the narrow strictures of the “plain error” doctrine.
We initially turn to the question of whether the government’s conduct could be considered “outrageous” under the law as currently developed. In United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989), we recently observed that:
“This court previously has noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. Bontkowski, 865 F.2d 129, 131 (7th Cir.1989). This doctrine stems from a statement in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1978), in which the Supreme Court noted that it might ‘some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’ Id. at 431-32, 93 S.Ct. at 1643; see also Bontkowski, 865 F.2d at 131; United States v. Valona, 834 F.2d 1334, 1343 (7th Cir.1987). Like the Supreme Court, this circuit also has left the possibility open, although we have never reversed a conviction on this ground. Valona, 834 F.2d at 1343 (quoting United States v. Swiatek, 819 F.2d 721, 725 (7th Cir.), cert. denied, [484] U.S. [903], 108 S.Ct. 245, 98 L.Ed.2d 203 (1987)).
Whether the Supreme Court itself ultimately will validate the doctrine of outrageous governmental conduct seems doubtful. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), a three justice plurality opined that ‘[t]he remedy of the criminal defendant with respect to the acts of governmental agents, which far from being resisted, are encouraged by him, lies solely in the defense of entrapment.’ Id. at 490, 96 S.Ct. at 1650; see also Bontkowski, 865 F.2d at 132; United States v. Williams, 858 F.2d 1218, 1225 (7th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989).”
Not only have we questioned the validity of the doctrine of outrageous governmental conduct, we have also observed that “due process grants wide leeway to law enforcement agencies in their investigation of the crime. Assuming that no independent constitutional right has been violated, governmental misconduct must be truly outrageous before due process will prevent conviction of the defendant.” United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983). As we also observed in Kaminski:
“ ‘In seeking to detect and punish crime, law enforcement agencies frequently are required to resort to tactics which might be highly offensive in other contexts. Granting that a person is predisposed to commit an offense, we think that it may safely be said that investigative officers and agents may go a long way in concert with the individual in question without being deemed to have acted so outrageously as to violate due process ... ’”
Kaminski, 703 F.2d at 1009 (quoting United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976)).
We have previously validated law enforcement undercover operations like that involved in this case. In United States v. Thoma, 726 F.2d 1191 (7th Cir.1984), we were also confronted with a child pornography sting operation. We noted that:
“Although there is no set formula for determining when Government conduct transgresses the boundaries of permissible investigative techniques, there are some recognized factors. When the Government supplies contraband, or becomes intimately involved in its production, then we will examine its conduct closely.... Similarly, we will closely examine those cases in which the Government misconduct injures third parties in some way.”
(Citations omitted). In our case, as in Tho-ma, there was no injury to innocent third parties as the government merely sent Duncan copies of previously seized child pornography. Although the government did provide contraband to Duncan, this does not in and of itself render the government’s conduct outrageous. In United States v. Valona, 834 F.2d 1334, 1344-45 (7th Cir.1987), we approved governmental action supplying contraband to a defendant during the course of an undercover drug investigation:
“It is clear that the government may supply drugs to a suspect in a drug investigation. Hampton v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (Powell, J., concurring) (defendant supplied with actual contraband convicted of selling). This is especially true where the government supplied only a small amount. United States v. Buishas, 791 F.2d 1310, 1314 (7th Cir.1986) (supplied with sixty-nine gram sample of marijuana, which was not the contraband the defendant was convicted of conspiring to sell).... [I]n such cases we ... consider the practical necessity of this type of police work. Large scale drug stings will likely not succeed without the provision of small samples, a typical preliminary stage in such drug trafficking.”
As in Valona, effective enforcement of laws involving the “consensual” crime of receiving child pornography shipped in foreign or interstate commerce will generally require, as a practical necessity, the controlled delivery of items of contraband to individuals, like Duncan, who are predisposed to commit this crime.
A decision that the Customs Service’s conduct was not “outrageous” is directly supported by the Third Circuit’s decision in United States v. Driscoll, 852 F.2d 84, 85-87 (3rd Cir.1988). In Driscoll, as in this case, government authorities, operating under the guise of a foreign child pornography business, sent the defendant a brochure offering to sell child pornography magazines. The defendant “ordered five magazines so explicitly described in the brochure as to leave no doubt that they contained child pornography.” 852 F.2d at 85. As in our case, government agents made a controlled delivery, executed a warrant and “found materials containing child pornography, including the issue of [the magazine] that had been ordered pursuant to their solicitation.” Id. The Third Circuit concluded that:
“In this case, the Postal Service agents merely offered to sell and then sold Dris-coll a magazine. Their conduct thus approximates the conduct that survived due process challenges in United States v. Jannotti, 673 F.2d 578 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982), and United States v. Thoma, 726 F.2d 1191 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). In Thoma, a case also involving use of the mails to transport pornography, the Postal Service’s undercover operation made numerous attempts to solicit defendant’s participation in its fictitious child pornography organization before the defendant responded to the solicitations. In rejecting defendant’s due process argument, the court held that the undercover organization ‘was nothing more than an undercover operation of an inherently clandestine activity and did not constitute Government misconduct, much less violate defendant’s right to due process.’ Id. at 1199. In Jannotti, a case involving the ABSCAM investigations designed to locate public officials susceptible to bribery, the agents handed over substantial amounts of cash to buy influence; we distinguished [United States v. Twigg, 588 F.2d 373 (3d Cir.1978)] on the ground that in Twigg the government set up, encouraged, and provided technical expertise to defendant whereas in Jan-notti, it ‘merely created the fiction that it sought to buy the commodity — influence — that the defendants proclaimed they already possessed.’ 673 F.2d at 608. In view of the precedent, we conclude that the government’s conduct here simply does not approach the level of outrageousness necessary to raise a valid due process defense.”
Driscoll, 852 F.2d at 86. In light of our own precedent on the question of “outrageous governmental conduct” and the decision of the Third Circuit in Driscoll, we conclude that the district court did not commit “plain error” in refusing to recognize an “outrageous governmental conduct” defense.
Ill
Duncan also challenges his conviction on the ground of insufficiency of the evidence. Duncan does not contest the fact that he received child pornography that had been shipped in interstate commerce. Rather, he asserts that he lacked prior knowledge of the fact that the photographs he had ordered were to depict children engaged in sexually explicit conduct.
“In evaluating [Duncan’s] sufficiency of the evidence challenge, we note that he bears a heavy burden. Initially, we ‘review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.’ ” United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). “The test is whether after viewing the evidence in the light most favorable to the government, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).
“ 'As we emphasized in United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir.1985): ‘[T]his court is not the trier of fact and we are required to uphold the [trier of fact’s] verdict where “any rational trier of fact” could have found the defendant guilty of the crime. ’ ... ‘Only when the record contains no evidence, regardless of how it is weighed, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict. ’ Nesbitt, 852 F.2d at 1509 (quoting United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987), cert. denied, [486 U.S. 1009], 108 S.Ct. 1738 [100 L.Ed.2d 202] (1988) which quoted in turn, United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985)) (emphasis added).”
United States v. Vega, 860 F.2d 779, 793 (7th Cir.1988). A trier of fact may properly consider both direct and circumstantial evidence in reaching its determination. As we observed in United States v. Grier, 866 F.2d 908, 923 (7th Cir.1989):
“ ‘Not only is the use of circumstantial evidence permissible, but “circumstantial evidence ‘may be the sole support for a conviction.’ ” ’ United States v. Nesbitt, 852 F.2d at 1510 (quoting United States v. Williams, 798 F.2d 1024, 1042 (7th Cir.1986) (dissenting opinion) which quoted, in turn, United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985)). ‘ “Circumstantial evidence is not less probative than direct evidence, and, in some cases is even more reliable.” ’ Williams, 798 F.2d at 1039 (dissenting opinion) (quoting United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974)). See also Wisconsin Jury Instructions-Criminal, No. 170 (‘[Circumstantial evidence may be stronger and more convincing that (sic) direct evidence’). ‘[T]he evidence “ ‘need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.’ ” United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986) (quoting United States v. Thornley, 707 F.2d 622 (1st Cir.1983)).’ [United States v.] Koenig, 856 F.2d [843] at 854 [(7th Cir.1988)].”
In weighing both direct and circumstantial evidence
“[Triers of fact] are allowed to draw upon their own experience in life as well as their common sense in reaching their verdict. See [United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986)]. While ‘[c]ommon sense is no substitute for evidence, ... common sense should be used to evaluate what reasonably may be inferred from circumstantial evidence.’ Id.”
Nesbitt, 852 F.2d at 1511.
The record is replete with evidence that provided a basis for a reasonable jury to conclude beyond a reasonable doubt that Duncan knowingly ordered and subsequently received material depicting children engaged in sexually explicit conduct. The brochure the Customs Service sent to Duncan plainly and unambiguously advertised for sale photographs of “boys and girls in sex action” and “[yjoung boys in sex action fun.” In addition, the brochure noted the “worldwide ban and intense enforcement” and the “underground” nature of the dissemination of this material, facts that placed Duncan on notice that the materials ordered were not innocent. Moreover, titles that in the context of the entire brochure scream “child pornography,” such as “School Girls and Boys,” “Lolita,” “Loving Children,” and “Joyboy,” were sufficiently clear and sufficiently explicit to make anyone, let alone Duncan, a collector of this material and a college professor assumed to be above average in intelligence, aware of the fact that child pornography was being offered. Furthermore, Duncan’s own personal order, in the name of Harrald Celline, was for photo sets of “School Girls and Boys,” “Joe and His Uncle,” “Miniboys No. 7” and “Chicken No. 11.” Certainly, at least some of these titles would have placed Duncan on notice that he was ordering child pornography. In addition, to this evidence, the jury was made aware of the fact that Customs’ search of Duncan’s residence resulted in the seizure of many other items depicting children engaged in sexually explicit behavior. These items included materials from COQ, formerly a large scale purveyor of homosexually oriented child pornography. COQ items were some of those offered in the brochure Customs sent to Duncan, and Duncan was found to have possessed a copy of “Joyboy,” one of the magazines Customs had offered in its brochure. In addition, Customs had previously seized an advertisement from COQ that had been sent to Duncan in the name of “Harold Celline.” Furthermore, Customs also seized a brochure and accompanying order blank for COQ child pornography material that was illustrated and described the contents of the material with sexually explicit language. Duncan had already filled out in his own name the order blank requesting five items of the COQ material. Finally, evidence was received that Duncan had completed a “Crusaders for Sexual Freedom” survey in the name of “Harold Celline,” that had been returned to the Postal Inspection Service and that stated that his highest preference was for “preteen sex-homosexual” material.
The jury was confronted with evidence of a brochure that reflected an offer of child pornography and Duncan’s order of photo sets with titles that, in the context of the brochure, clearly denoted child pornography. The jury also received evidence of Duncan’s possession of vast amounts of child pornography in his residence, including an illustrated COQ child pornography brochure that described the involved material in sexually explicit language. The above evidence, together with Duncan’s possession of a completed order blank for the COQ material and Duncan’s statement of preference for pre-teen, homosexual material in the “Crusaders for Sexual Freedom” survey, could very logically lead a reasonable jury to conclude that Duncan knowingly received depictions of minors engaged in sexually explicit conduct that had been transported in interstate and foreign commerce.
We agree that the trial court’s failure to consider an outrageous governmental conduct defense was not plain error and also conclude that there was sufficient evidence to support Duncan’s conviction. Thus, the judgment of conviction is
Affirmed.
. Operation Borderline is the same undercover operation involved in our recent decision in United States v. Kalinowski, 890 F.2d 878 (7th Cir.1989).
. The numbers following the titles refer to a specific issue in a series of child pornography magazines.
. The United States Postal Inspection Service’s "Crusaders for Sexual Freedom” survey involved a questionnaire that was mailed to individuals whose names had appeared on previous Customs Service pornography seizure lists. Harold Celline had received a survey because an advertisement from a Danish child pornography enterprise, COQ, addressed to Celline had been the subject of a Customs seizure. The questionnaire asked respondents to state their preferred sexual materials, and Celline responded that his highest preference was for pre-teen sex-homosexual material. The Postal Inspection Service provided the information concerning Celline’s response to the Customs Service sometime during the early part of 1986.
. After receiving the envelope from DHL, Agent Braaten took the photographs from the envelope, inventoried them and returned them to the envelope.
. The Government presented testimony from Dr. James Anthony Monteleone, M.D., Professor of Pediatrics at St. Louis University Medical School, who is board certified in pediatric endocrinology. Based upon his medical opinion and training, he testified that the pictures the Government had delivered to Duncan depicted children under the age of 18. He also testified that the other items of child pornography that were seized from Duncan and received in evidence at trial depicted children under the age of 18.
. As noted in the previous paragraph, Holbaek, Denmark, according to the order blank Duncan had filled out, was the location where orders for COQ International materials were to be sent.
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_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
U.S. HEALTHCARE, INC., United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc., Appellants in 88-1180, v. BLUE CROSS OF GREATER PHILADELPHIA, Pennsylvania Blue Shield and David Markson. Appeal of BLUE CROSS OF GREATER PHILADELPHIA (“BLUE CROSS”) and Pennsylvania Blue Shield (“Blue Shield”), in No. 88-1205.
Nos. 88-1180, 88-1205.
United States Court of Appeals, Third Circuit.
Argued Oct. 18, 1988.
Decided March 9, 1990.
Rehearing and Rehearing In Banc Denied April 4, 1990.
David F. Simon (argued), David I. Book-span, Gary L. Leshko, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellants-cross-appellees, U.S. Healthcare, Inc., U.S. Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc.
Jay H. Calvert, Jr. (argued), John H. Lewis, Jr., Ronald B. Hauben, Morgan, Lewis & Bockius, Philadelphia, Pa., for ap-pellees-cross-appellants, Blue Cross of Greater Philadelphia and David S. Mark-son.
Henry Kolowrat, Dechert, Price & Rhoads, Philadelphia, Pa., James A. Young (argued), Timothy I. McCann, Sprecher, Felix, Visco, Hutchison & Young, Philadelphia, Pa., for appellee-cross-appellant, Pennsylvania Blue Shield.
Before STAPLETON, SCIRICA and COWEN, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
U.S. Healthcare, Inc. and its subsidiaries, United States Health Care Systems of Pennsylvania, Inc. and Health Maintenance Organization of New Jersey, Inc. (collectively, “U.S. Healthcare”), appeal from the district court’s post-trial entry of judgment in favor of Blue Cross of Philadelphia, its president David Markson, and Pennsylvania Blue Shield (collectively, “Blue Cross/Blue Shield”), directed under Fed.R. Civ.P. 50(b) on U.S. Healthcare’s federal and pendent state law claims alleging violations of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982), commercial disparagement, defamation and tortious interference with contractual relations. Blue Cross/Blue Shield, in turn, appeals from the entry of judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims alleging the same causes of action brought by U.S. Healthcare. Additionally, Blue Cross/Blue Shield appeals the pre-trial dismissal of the abuse of process counts in its counterclaims. We will reverse the grant of the Rule 50(b) motions, the judgment on the verdict in favor of U.S. Healthcare on Blue Cross/Blue Shield’s counterclaims and the dismissal of the counts on abuse of process.
I.
FACTS AND PROCEDURAL HISTORY
These cross appeals arise from a comparative advertising war between giants of the health care industry in the Delaware Valley — U.S. Healthcare on the one side and Blue Cross/Blue Shield on the other. The thrust of these claims is that each side asserts the other’s advertising misrepresented both parties’ products.
For over fifty years, Blue Cross/Blue Shield operated as the largest health insurer in Southeastern Pennsylvania by offering “traditional” medical insurance coverage. Traditional insurance protects the subscriber from “major” medical expenses, with the insurer paying a negotiated amount based upon the services rendered, and the subscriber generally paying a deductible or some other amount. The subscriber has freedom in choosing hospitals and health care providers (i.e., doctors).
In the early 1970’s, U.S. Healthcare began providing an alternative to traditional insurance in the form of a health maintenance organization, generically known as an “HMO.” An HMO acts as both an insurer and a provider of specified services that are more comprehensive than those offered by traditional insurance. Generally, HMO subscribers choose a primary health care provider from the HMO network who coordinates their health care services and determines when hospital admission or treatment from a specialist is required. Usually, subscribers are not covered for services obtained without this permission or from providers outside this network. By 1986, U.S. Healthcare was the largest HMO in the area, claiming almost 600,000 members. During the same period, Blue Cross/Blue Shield experienced a loss in enrollment of over 1% per year, with a large number of those subscribers choosing HMO coverage over traditional insurance, and a majority of those defectors choosing a U.S. Healthcare company.
Blue Cross/Blue Shield considered a number of strategies to regain its market position, including the acquisition of its own HMO. In late 1985, in an admitted attempt to compete with HMO, Blue Cross/Blue Shield introduced a new product that it called “Personal Choice,” known generically as a preferred provider organization or “PPO.” PPO insurance provides subscribers with a “network” of health care providers and hospitals, and generally “covers” subscribers only for services obtained from the network providers and administered at the network hospitals. Subscribers must obtain permission to receive treatment from providers outside the network, and in such instances receive at most only partial coverage.
Thereafter, Blue Cross/Blue Shield consulted with two separate advertising agencies before arriving at a marketing strategy for its new product. In July 1986, Blue Cross/Blue Shield launched what it termed a deliberately “aggressive and provocative” comparative advertising campaign calculated “to introduce and increase the attractiveness of its products” — in particular, Personal Choice — at the expense of HMO products. Blue Cross/Blue Shield’s campaign, which included direct mailings, as well as television, radio and print advertisements, ran for about six months at a total cost of approximately $2,175 million. According to a Blue Cross memorandum that purported to reflect the directions of Markson, the campaign was designed specifically to “reduce the attractiveness of [HMO].”
The Blue Cross/Blue Shield advertising campaign consisted of eight different advertisements for the print media, seven different advertisements for television, three different advertisements for radio, and a direct mailing including a folding brochure. The eight print advertisements compare the features of HMO and Personal Choice. Seven of the eight represent that with HMO, the subscriber selects a “primary care physician” who, in turn, must give permission before HMO will provide coverage for examination by a specialist. (The eighth print advertisement simply states that with Personal Choice, the subscriber may be examined by a specialist whenever he chooses, without “permission.”) After describing HMO’s referral procedure, however, three of the eight print advertisements — as well as the brochure — say the following:
You should also know that through a series of financial incentives, HMO encourages this doctor to handle as many patients as possible without referring to a specialist. When an HMO doctor does make a specialist referral, it could take money directly out of his pocket. Make too many referrals, and he could find himself in trouble with HMO.
One of the print advertisements and the brochure also feature a senior citizen under the banner heading “Your money or your life,” juxtaposed with Blue Cross/Blue Shield’s description of “The high cost of HMO Medicare.”
Of the seven television advertisements run by Blue Cross/Blue Shield, four are innocuous, mentioning HMO only in the closing slogan common to all seven of the ads: “Personal Choice. Better than HMO. So good, it’s Blue Cross and Blue Shield.” The fifth features an indignant every man, who simply states “I resent having to ask my HMO doctor for permission to see a specialist,” before a spokesperson extols the benefits of Personal Choice without reference to HMO until, again, the closing slogan. The sixth features a cab driver who says, “I don’t like those HMO health plans. You get one doctor, no choice of hospitals,” before a shopper tells him about the virtues of Personal Choice — again, without reference to HMO until the closing slogan. The seventh television advertisement used by Blue Cross/Blue Shield, while following the same general format, seems to us a dramatic departure from the others in that it appears consciously designed to play upon the fears of the consuming public. The commercial features a grief-stricken woman who says, “The hospital my HMO sent me to just wasn’t enough. It’s my fault.” The implication of the advertisement is that some tragedy has befallen the woman because of her choice of health care.
The three radio advertisements of Blue Cross/Blue Shield compare the features of HMO and Personal Choice. All represent that HMO limits choice of hospitals and physicians and requires plan permission to see a specialist, but that Personal Choice provides unlimited choice of network hospitals and physicians and affords unrestricted access to specialists.
U.S. Healthcare responded immediately to Blue Cross/Blue Shield’s promotional campaign. Within a week, U.S. Healthcare filed suit in Philadelphia County Court of Common Pleas alleging commercial disparagement, defamation and tortious interference with contractual relations. U.S. Healthcare also issued concurrent press releases describing the basis of the litigation. In addition, the company embarked upon its own aggressive, comparative advertising blitz.
The responsive advertising campaign, which began sometime after the Blue Cross/Blue Shield campaign and ran until late February 1987, cost $1,255 million. U.S. Healthcare’s campaign consisted of five different advertisements for the print media, four different television advertisements, and two different radio advertisements. Of these, two advertisements were adapted for all three media as a response to Blue Cross/Blue Shield’s most serious criticisms.
The first of these multi-media advertisements — apparently attempting to counteract the Blue Cross/Blue Shield message that HMO doctors sacrificed quality of care for higher profit — emphasizes the length to which U.S. Healthcare will go to provide its subscribers with the best treatment available. It features an HMO doctor with a little girl who, it quickly becomes apparent, is both very healthy and a former HMO patient. While the exact text varies according to the medium, all versions feature the HMO doctor saying that this girl, who required a unique wrist operation, was sent to Baltimore to be operated on by “the best [surgeon] in the country” rather than one of HMO’s fine surgeons.
The second multi-media advertisement addresses HMO’s practice of allowing examination by specialists only when the subscriber is referred by his primary care physician. The advertisement features just such a physician, explaining that the purpose of a primary care physician is to help the subscriber decide what type of specialist should be consulted, so that the subscriber can be sure of receiving the treatment he needs. Neither multi-media advertisement makes any reference to Blue Cross/Blue Shield.
U.S. Healthcare’s responsive campaign did not just highlight the positive characteristics in its own product, but also featured “anti-Blue Cross” advertisements. Of the three remaining print advertisements, one simply shows a comparative list of the features available under HMO and Personal Choice, with a banner heading that reads “It’s your choice.” The other two explain that under Personal Choice, the number of hospitals available to the subscriber is limited and, moreover, that many Personal Choice doctors do not have admitting privileges at even those few. One of these advertisements ran under a banner heading of “When it Comes to Being Admitted to a Hospital, There’s Something Personal Choice May Not Be Willing to Admit”; the other ran under a banner heading of “If You Really Look Into ‘Personal Choice,’ You Might Have a Better Name For It.”
One of the two remaining television advertisements shows a person flipping through the Hospitals and Physicians Directory of Personal Choice, pointing out the “gray area” of physicians without admitting privileges — essentially making the same point as the two print advertisements. The final television commercial was U.S. Healthcare’s own attempt to play upon the fears of the consuming public. As solemn music plays, the narrator lists the shortcomings of Personal Choice while the camera pans from a Personal Choice brochure resting on the pillow of a hospital bed to distraught family members standing at bedside. The advertisement closes with a pair of hands pulling a sheet over the Personal Choice brochure.
Thereafter, U.S. Healthcare re-filed its state claims in federal court in the Eastern District of Pennsylvania, adding its § 43(a) Lanham Act claim. Federal subject matter jurisdiction was premised on the assertion of a federal question, 28 U.S.C. § 1331 (1982), and on claims of unfair competition, 28 U.S.C. § 1338(a) (1982). Pendant jurisdiction was exercised over the state law claims. Blue Cross/Blue Shield counterclaimed on the same theories of liability, while also alleging abuse of process and malicious use of process. Before trial, the district court dismissed the abuse of process and malicious use of process counts in Blue Cross/Blue Shield’s counterclaims.
After a fourteen-day trial, followed by eight days of deliberations, the jury announced it was deadlocked on all issues of liability and damages. The district court declared a mistrial and then, before excusing the jurors, invited them to share their thoughts on the case for the benefit of the lawyers. It became apparent that, with regard to the counterclaims, the jurors were not far from unanimity. Consequently, the district court sent the jury back to deliberate whether Blue Cross/Blue Shield could recover damages on its counterclaims. Only then did the jury return a verdict against Blue Cross/Blue Shield on its counterclaims. The district court thereafter entered judgment for U.S. Healthcare on the counterclaims and scheduled a new trial on U.S. Healthcare’s own claims.
The case was never retried. Instead, Blue Cross/Blue Shield filed a motion under Fed.R.Civ.P. 50(b) requesting the court to direct entry of judgment in its favor, on the grounds that the advertisements were entitled to heightened constitutional protection under the First Amendment, and that U.S. Healthcare had not met the applicable standard of proof, set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), et seq. The district court granted the motion. U.S. Healthcare, Inc. v. Blue Cross, No. 86-6452, 1988 WL 21830 (E.D.Pa. Mar. 7, 1988). The court held that because the objects of the advertisements are “public figures,” and because the matters in the advertisements are “community health issues of public concern,” heightened constitutional protections attach to this speech. The court reasoned that the First Amendment limited the power of the state and of Congress to award damages resulting from the allegedly false and misleading advertisements. Accordingly, the district court held that in order to prevail on their respective claims of Lanham Act violation, commercial disparagement, defamation and tor-tious interference with contract, both parties were required to prove each claim by clear and convincing evidence: (1) that the other side published the advertisements with knowledge or with reckless disregard of their falsity, and (2) that the advertisements were false. Applying this standard of proof, the court concluded that “[ajlthough the jury could reasonably have concluded that both sides had proven falsity and actual malice by a preponderance of the evidence, neither side has presented clear and convincing evidence [of this].”
This appeal followed.
II.
THE ACTIONABLE CLAIMS AND COUNTERCLAIMS UNDER APPLICABLE SUBSTANTIVE FEDERAL AND STATE LAW
We note initially that federal law governs the substantive issues of the parties’ Lanham Act claims, while Pennsylvania law governs the commercial disparagement, defamation and tortious interference with contract claims. Although the district court granted the Rule 50(b) motions on constitutional grounds, we must first determine whether the statements are actionable under the substantive law governing the case before addressing whether the First Amendment prohibits the imposition of liability, since a determination of the former may obviate the need to examine the latter. See McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir.1985); Avins v. White, 627 F.2d 637, 642 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980). Furthermore, Blue Cross/Blue Shield argues that the “challenged advertisements are not actionable regardless of the standard of proof.” Therefore, we turn to the federal and state substantive law governing the parties’ claims to determine whether there might exist a genuine issue of material fact.
A. Applicable Federal and Pennsylvania Common Law.
As a threshold matter, we note that the burden of proof for the applicable substantive law is a preponderance of the evidence. On appeal, the parties contest the burden of proof on the Lanham Act claim only. Unless New York Times applies, the burden of proof here is a preponderance of the evidence.
1. Section 43(a) of The Lanham Act.
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988), which was recently amended, creates a cause of action for any false description or representation of a product. This proscription extends to misleading descriptions or representations. Id.; see Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 11 (E.D.Pa.1974); see also McNeilab, Inc. v. Bristol-Myers Co., 656 F.Supp. 88, 90 (E.D.Pa.1986). “While it has been stated that a failure to disclose facts is not actionable under § 43(a), it is equally true that a statement is actionable under § 43(a) if it is affirmatively misleading, partially incorrect, or untrue as a result of failure to disclose a material fact.” 2 J. McCarthy, Trademarks and Unfair Competition § 27:7B (2d ed. 1984).
The pre-amendment version, which controlled when the district court considered the matter, applied only to statements made by a defendant about its own products, not to statements about the plaintiffs products. Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 37 (2d Cir.1982); Bernard Food Indus., Inc. v. Dietene Co., 415 F.2d 1279, 1283 (7th Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 911, 25 L.Ed.2d 92 (1970). As amended, however, § 43(a) encompasses statements made by a defendant about “his or her or another person’s” products. 15 U.S.C. 1125(a) (emphasis added).
When analyzing a challenged advertisement, the court first determines what message is conveyed. Plough, Inc. v. Johnson & Johnson Baby Prods. Co., 532 F.Supp. 714, 717 (D.Del.1982); McCarthy § 27:7B. Sometimes this determination may be made from the advertisement on its face. Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1110 (D.N.J.1987); e.g., Ames Publishing, 372 F.Supp. at 12. Nonetheless, “[cjontext can often be important in discerning the message conveyed.” Plough, 532 F.Supp. at 717.
After determining the message conveyed, the court must decide whether it is false or misleading. Stiffel, 658 F.Supp. at 1110; McCarthy § 27:7B; see Plough, 532 F.Supp. at 717. Mere puffing, advertising “ ‘that is not deceptive for no one would rely on its exaggerated claims,’ ” is not actionable under § 43(a). Toro Co. v. Tex-tron, Inc., 499 F.Supp. 241, 253 n. 23 (D.Del.1980) (quoting 1 R. Callmann, Unfair Competition, Trademarks and Monopolies § 19.2(b)(2) (3d ed. 1967 & 1979 Supp.)). If the advertisement is literally true, the plaintiff “must persuade the court that the persons ‘to whom the advertisement is addressed’ would find that the message received left a false impression about the product.” Id. at 251 (citation omitted); see Stiffel, 658 F.Supp. at 1110. Finally, establishing lack of substantiation of defendant’s claim is insufficient without also establishing falsity or deception. Toro, 499 F.Supp. at 253.
The plaintiff must also show that defendant’s misrepresentation is “ ‘material, in that it is likely to influence the purchasing decision.’ ” Id. at 251 (citation omitted); see McCarthy § 27:4D. However, “there is no requirement that the falsification occur wilfully and with intent to deceive.” Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648 (3d Cir.1958).
Next, § 43(a) requires that the defendant use the false or misleading description or representation “in commerce.” 15 U.S.C. § 1125(a); see SK & F, Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055, 1065 (3d Cir.1980). The commerce requirement has been broadly interpreted. McCarthy § 27:6C.
Finally, § 43(a) provides a remedy to one who “is or is likely to be damaged by [the false or misleading description or representation].” 15 U.S.C. § 1125(a). To' recover damages, a plaintiff must show that the “falsification [or misrepresentation] actually deceives a portion of the buying public.” Parkway Baking, 255 F.2d at 648; Walker-Davis Publications, Inc. v. Penton/IPC, Inc., 509 F.Supp. 430, 435 (E.D.Pa.1981) (citing Parkway Baking). “This does not place upon the plaintiff a burden of proving detailed individualization of loss of sales. Such proof goes to quantum of damages and not to the very right to recover.” Parkway Baking, 255 F.2d at 648.
Judge Poliak has summarized well this area of the law in the following test:
1) that the defendant has made false or misleading statements as to his own product [or another’s]; 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence purchasing decisions; 4) that the advertised goods travelled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc.
Max Daetwyler Corp. v. Input Graphics, Inc., 545 F.Supp. 165, 171 (E.D.Pa.1982) (citing American Home Prods. Corp. v. Johnson & Johnson, 577 F.2d 160, 165-66 (2d Cir.1978)).
2. Defamation.
Under Pennsylvania law, a defamatory statement is one that “ ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ” Birl v. Philadelphia Elec. Co., 402 Pa. 297, 303, 167 A.2d 472 (1960) (quoting Restatement of Torts § 559 (1938)); accord Thomas Merton Center v. Rockwell Int’l Corp., 497 Pa. 460, 464, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). It is for the court to determine, in the first instance, whether the statement of which the plaintiff complained is capable of a defamatory meaning; if the court decides that it is capable of a defamatory meaning, then it is for the jury to decide if the statement was so understood by the reader or listener. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899 (1971). To ascertain the meaning of an allegedly defamatory statement, the statement must be examined in context. Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399 (1987).
The test is the effect the [statement] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.
Corabi, 441 Pa. at 447, 273 A.2d 899 (citation omitted). Opinion that fails to imply underlying defamatory facts cannot support the cause of action. Baker, 516 Pa. at 297, 532 A.2d 399.
In an action for defamation, the plaintiff has the burden of proving 1) the defamatory character of the communication; 2) its publication by the defendant; 3) its application to the plaintiff; 4) an understanding by the reader or listener of its defamatory meaning; and 5) an understanding by the reader or listener of an intent by the defendant that the statement refer to the plaintiff. 42 Pa. Cons. Stat. § 8343(a)(l)-(5) (1988). Additionally, in order to recover damages, the plaintiff must demonstrate that the statement results from fault, amounting at least to negligence, on the part of the defendant. Geyer v. Steinbronn, 351 Pa.Super. 536, 554-55, 506 A.2d 901 (1986); Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 186, 484 A.2d 72 (1984); 42 Pa. Cons. Stat. § 8344 (1988). Finally, the plaintiff has the burden of proving any special harm resulting from the statement. 42 Pa. Cons. Stat. § 8343(a)(6) (1988); see Restatement of Torts § 575 comment b (defining special harm).
The defendant, in turn, can defend against a defamation action by proving the truth of the statement, that the subject matter of the statement was of public concern, or that the occasion on which the statement was made or published was of privileged character. Spain v. Vicente, 315 Pa.Super. 135, 140, 461 A.2d 833 (1983); 42 Pa. Cons. Stat. § 8343(b) (1988); cf. Corabi, 441 Pa. at 450 n. 6, 273 A.2d 899. When the last of these defenses is raised, the burden shifts to the plaintiff to show abuse of the conditionally privileged occasion. Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 275, 285 A.2d 166 (1971); Rutt, 335 Pa.Super. at 186-87, 484 A.2d 72; 42 Pa. Cons. Stat. § 8343(a)(7) (1988).
3. Commercial Disparagement.
A commercially disparaging statement — in contrast to a defamatory statement — is one “which is intended by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another’s property in land, chattels or intangible things, or upon their quality,... if the matter is so understood by its recipient.” Menefee v. Columbia Broadcasting Sys., Inc., 458 Pa. 46, 54, 329 A.2d 216 (1974) (quoting Restatement of Torts § 629 (1938)). In order to maintain an action for disparagement, the plaintiff must prove 1) that the disparaging statement of fact is untrue or that the disparaging statement of opinion is incorrect; 2) that no privilege attaches to the statement; and 3) that the plaintiff suffered a direct pecuniary loss as the result of the disparagement. See Menefee, 458 Pa. at 53, 329 A.2d 216 (quoting Restatement of Torts introductory note to Chapter 28).
The distinction between actions for defamation and disparagement turns on the harm towards which each is directed. An action for commercial disparagement is meant to compensate a vendor for pecuniary loss suffered because statements attacking the quality of his goods have reduced their marketability, while defamation is meant protect an entity’s interest in character and reputation. In Menefee, the Pennsylvania Supreme Court made the following observation:
One of the most important purposes for which liability for the publication of matter derogatory to another’s personal reputation is imposed is to enable the person defamed to force his accuser into open court so that the accusation, if untrue, may be branded as false by the verdict of a jury. The action for disparagement has no such purpose and cannot be used merely to vindicate one’s title to or the quality of one’s possessions....
Id. (quoting Restatement of Torts introductory note to Chapter 28).
Given the similar elements of the two torts, deciding which cause of action lies in a given situation can be difficult. The Court of Appeals for the Eighth Circuit gave the following time-honored explanation of when impugnation of the quality of goods crosses the line from disparagement of products to defamation of vendors:
[Wjhere the publication on its face is directed against the goods or product of a corporate vendor or manufacturer, it will not be held libelous per se as to the corporation, unless by fair construction and without the aid of extrinsic evidence it imputes to the corporation fraud, deceit, dishonesty, or reprehensible conduct in its business in relation to said goods or product.
National Ref. Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763, 771 (8th Cir.), cert. denied, 275 U.S. 570, 48 S.Ct. 157, 72 L.Ed. 431 (1927).
An examination of state court decisions indicates that Pennsylvania law tracks the National Refining distinction. See, e.g., Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 319, 182 A.2d 751 (1962) (defamation action lay when competitor’s advertisement accused plaintiff of using unnecessary haste and unskilled workmanship in development of customers’ film, resulting in its ruin, and implied plaintiff was dishonest in its business practice by inflating prices); Will v. Press Publishing Co., 309 Pa. 539, 544, 164 A. 621 (1932) (defamation action lay for accusation that plaintiff did not pay accounts of his business, as words implied dishonesty); Pfeifly v. Henry, 269 Pa. 533, 535, 112 A. 768 (1921) (defamation action lay for statement that plaintiff miller dishonestly weighed flour he sold); see also Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 271 (3d Cir.1980) (news report that plaintiff corporation deceived customers as to both price and quality of its product capable of defamatory meaning under Pennsylvania law).
4. Tortious Interference with Contract
The Restatement of Torts described this tort fifty years ago: “[O]ne who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.” Restatement of Torts § 766 (1939). Pennsylvania has adopted this prescription while recognizing two distinct branches of the tort: one concerning existing contractual rights, and another regarding prospective contractual relations.
Regarding existing contractual rights, the Pennsylvania Supreme Court has adopted the test set forth in the Restatement (Second) of Torts:
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person’s failure to perform the contract.
Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 431, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979); accord Daniel Adams Assocs., Inc. v. Rimbach Publishing, Inc., 360 Pa.Super. 72, 78, 519 A.2d 997 appeal denied, 517 Pa. 599, 535 A.2d 1057 (1987). Thus, as a threshold matter, a contract right must be established. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 412 A.2d 466 (1979). In determining the propriety of the actor’s conduct, the court is “guided” by the following factors from the Restatement (Second) of Torts:
(a) The nature of the actor’s conduct,
(b) The actor’s motive,
(c) The interests of the other with which the actor’s conduct interferes,
(d) The interests sought to be advanced by the actor,
(e) The proximity or remoteness of the actor’s conduct to the interference and
(f) The relations between the parties.
Adler, Barish, 482 Pa. at 433, 393 A.2d 1175.
With respect to prospective contractual relations, the following elements must be demonstrated:
(1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant’s conduct.
Thompson Coal Co., 488 Pa. at 208, 412 A.2d 466; accord Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146, 155, 554 A.2d 989 (1989). The Pennsylvania Supreme Court has defined “prospective contractual relation” as “something less than a contractual right, something more than a mere hope.” Thompson Coal Co., 488 Pa. at 209, 412 A.2d 466. In short, it is “a reasonable probability” that contractual relations will be realized. Id. (citing Glenn v. Point Park College, 441 Pa. 474, 480, 272 A.2d 895 (1971)). Such an expectation may arise from an unenforceable express agreement or an offer. Glenn, 441 Pa. at 481 n. 6, 272 A.2d 895. The privilege determination “is not susceptible of precise definition” but is informed by the “ ‘rules of the game’ ” and “ ‘the area of socially acceptable conduct which the law regards as privileged.’ ” Id. at 482, 272 A.2d 895 (citation omitted).
B. The Actionable Construction of the Advertisements
From the record before us, both U.S. Healthcare and Blue Cross/Blue Shield have taken a broad approach to this litigation, each complaining about all of the advertisements in the other’s comparative campaign. Not all of the advertisements are actionable under all of the theories alleged. Therefore, we make the following rulings on which advertisements could be found actionable by a jury under the standards we have outlined.
First, we consider as a group three of Blue Cross/Blue Shield’s television advertisements, which appear to be mere identification pieces containing no substantive information. They feature actors stating either their trust in Blue Cross/Blue Shield, or their preference for Personal Choice over HMO. Additionally, they all feature the slogan “Better than HMO. So good, it’s Blue Cross and Blue Shield.” This strikes us as the most innocuous kind of “puffing,” common to advertising and presenting no danger of misleading the consuming public. Consequently, we find
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_r_stid
|
31
|
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.
Robert A. FELMEISTER, Hanan M. Isaacs and Felmeister & Isaacs, a partnership, Appellants, v. OFFICE OF ATTORNEY ETHICS, A DIVISION OF THE NEW JERSEY ADMINISTRATIVE OFFICE OF THE COURTS; Robert N. Wilentz; Robert L. Clifford; Alan B. Handler; Daniel J. O’Hern; Stewart G. Pollock; Marie A. Garibaldi; Gary S. Stein, in their capacity as Justices of the Supreme Court of New Jersey; David E. Johnson, Jr., in his capacity as Director of the Office of Attorney Ethics; Robert D. Lipscher, in his capacity as Director of the Administrative Office of the Courts.
No. 87-5524.
United States Court of Appeals, Third Circuit.
Argued Jan. 12, 1988.
Decided Aug. 31, 1988.
David B. Rubin (argued), Rubin, Rubin & Malgran, Piscataway, N.J., for appellants.
W. Cary Edwards, Atty. Gen. of N.J., Andrea M. Silkowitz, Asst. Atty. Gen., Susan L. Reisner, Deputy Atty. Gen. (argued), Newark, N.J., for appellees.
Before HIGGINBOTHAM and BECKER, Circuit Judges, and SHAPIRO, District Judge.
Honorable Norma L. Shapiro, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal from the district court’s dismissal on grounds of ripeness and Bur-ford abstention of plaintiffs’ complaint seeking a declaration that the New Jersey Supreme Court’s revised attorney advertising regulations violate the first and fourteenth amendments to the constitution. The challenged disciplinary rule provides, inter alia, that “[a]ll advertisements shall be predominantly informational”; that “[n]o drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised advertising”; and that “[n]o advertisement shall rely in any way on techniques to obtain attention that depend upon absurdity and that demonstrate a clear and intentional lack of relevance to the selection of counsel.” R.P.C. 7.2(a).
Plaintiffs are attorneys Robert A. Fel-meister, Hanan M. Isaacs and their law partnership, Felmeister & Isaacs. They have alleged in their (amended) complaint that the rule: (1) violates the protections afforded commercial speech under the first and fourteenth amendments; (2) imposes an unconstitutionally vague standard to determine whether advertisements are sanctioned under the rule in violation of the Due Process Clause of the fourteenth amendment; and (3) creates an unlawful prior restraint by requiring prepublication review of advertisements by the Supreme Court of New Jersey Committee on Attorney Advertising.
We conclude that the district court abused its discretion in abstaining under Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943). We do not believe that the regulation of attorney advertising concerns an area that is particularly complex and technical, nor do we believe that it implicates peculiarly local concerns. Hence, we cannot agree that the exercise of federal jurisdiction here would constitute inappropriate interference in the shaping of important state policies.
We nevertheless decline to reach the merits because we agree with the'district court’s decision to dismiss the complaint for lack of ripeness. On the basis of the mere allegations in the complaint and accompanying affidavit, it is impossible to determine whether plaintiffs’ proposed advertisements are likely to run afoul of the revised rule or whether publication of the ads is likely to subject plaintiffs to disciplinary action. Moreover, plaintiffs need not risk disciplinary action in order to learn whether their advertisements comply with the rule. New Jersey has provided an expeditious means of testing the reach of the rule through an advisory opinion process. Plaintiffs, however, have not submitted their advertisements to the advisory committee and hence have not availed themselves of a relatively simple way of determining whether their ads run afoul of the rule. Recent Supreme Court jurisprudence suggests that mandatory prescreening of commercial advertisements may be constitutionally sound, see infra page 537; we simply rely on the availability of the advisory process in declining to grant premature judicial review. Without a demonstration that plaintiffs are likely to risk disciplinary action, they have not presented the court with a justiciable case or controversy.
I. PROCEDURAL HISTORY
On January 16, 1984, the Supreme Court of New Jersey promulgated DR2-102(A) (recodified as RPC 7.2(a)), which provided that:
Subject to the requirements of RPC 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communications. All advertisements shall be presented in a dignified manner without the use of drawings, animations, dramatizations, music or lyrics.
In their original complaint filed February 9, 1984, pursuant to 42 U.S.C. § 1983, plaintiffs sought declaratory and injunctive relief against the Office of Attorney Ethics, a division of the New Jersey Administrative Office of the Courts, challenging the “dignified manner” standard and the limitation on the use of drawings, animations, etc., as violative of the first and fourteenth amendments. The defendant responded by moving for dismissal on grounds of abstention and failure to name a proper party defendant.
In a bench opinion delivered February 27, 1984, the district court abstained under Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943), on the ground that attorney advertising was an “emerging, uncertain area” in which “[tjhere [wa]s indeed a substantial state interest in regulation by a state supreme court.” App. at 17a. Additionally, the court noted that Felmeister and Isaacs could raise the constitutional issues presented in their federal suit before the New Jersey Supreme Court by way of a direct petition invoking the Supreme Court’s original jurisdiction to challenge the rule. Relying on American Trial Lawyers v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973), the district court retained jurisdiction pending the state court proceedings.
Plaintiffs thereupon directly petitioned the Supreme Court of New Jersey, which remanded the matter to a state trial court to develop a factual record. The state trial court conducted an adversary proceeding and recommended that the “dignity” standard be retained, but that the prohibition against the use of drawings, animations, dramatizations, music or lyrics be eliminated from the rule.
The parties briefed and argued the merits of the trial court’s recommendations to the New Jersey Supreme Court. For public policy and federal constitutional reasons, the Supreme Court significantly revised the attorney advertising rule. Petition of Felmeister & Isaacs, 104 N.J. 515, 518 A.2d 188, 189 (1986). The new rule, New Jersey Rule of Professional Conduct 7.2, provides in pertinent part:
Subject to the requirements of RPC 7.1. a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communication. All advertisements shall be predominantly informational. No drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised advertising. No advertisement shall rely in any way on techniques to obtain attention that depend upon absurdity and that demonstrate a clear and intentional lack of relevance to the selection of counsel; included in this category are all advertisements that contain any extreme portrayal of counsel exhibiting characteristics clearly unrelated to legal competence.
Id,.
The Supreme Court also created a new administrative agency, the Supreme Court of New Jersey Committee on Attorney Advertising (the “Committee”), to implement the rule. Id. at 205-07. The Committee’s delegated authority included the power, inter alia, (1) to promulgate rules and regulations and monitor compliance therewith; (2) to establish guidelines for application of the new rule’s “predominantly informational” and “extreme portrayal” standards; (3) to render advisory opinions in advance of publication; (4) to review at its discretion, prior to publication, any attorney advertisements prepared with the assistance of advertising professionals; and (5) to report annually (beginning January 1, 1988), after public hearings, “on the desirability of retaining, revising or repealing the new rule, or adopting any other proposed rule.” Id. at 205-07.
On January 5, 1987, following the Supreme Court’s decision, plaintiffs filed an amended complaint in the district court. In this complaint they joined as defendants the individual justices of the Supreme Court and the directors of the Office of Attorney Ethics and the Administrative Office of the Courts. App. at 30a-31a. Plaintiffs challenged the revised rule, claiming that it violated their first amendment rights. App. at 31a. They attacked the new rule’s “predominantly informational” standard as unconstitutionally vague and the Committee’s prepublication review function as an unlawful prior restraint. App. at 31a-32a. The defendants countered with a motion to dismiss on the grounds, inter alia, of abstention and lack of ripeness for adjudication.
In the district court’s view it was unnecessary to reach the merits of plaintiffs’ application for a preliminary injunction because the amended complaint was dismissible on the ground of Burford abstention. Relying on the state Supreme Court’s characterization of its decision as “tentative and subject to change based on future experience,” 518 A.2d at 189, and the Supreme Court’s creation of the Committee to administer the rule, the district court concluded that the exercise of federal jurisdiction would be disruptive of the state’s efforts to establish a coherent policy on matters of public concern. App. at 67a.
As an alternative ground for dismissal, the district court concluded that plaintiffs’ case was not ripe for adjudication. In reaching this conclusion, the district court relied on two factors. First, even assuming that plaintiffs’ complaint presented a live case or controversy, the court held that their “claim [wa]s clearly not ripe for adjudication as long as the Committee ha[d] yet to issue its report.” App. at 71a. Second, the court noted that Felmeister and Isaacs “ha[d] not demonstrated how they [wejre suffering any hardship as a result of the new Rule” since the threatened injury complained of by plaintiffs was speculative and remote. App. at 72a. The district court thus dismissed plaintiffs’ amended complaint and this appeal followed.
On appeal, Felmeister and Isaacs urge us to vacate the district court’s dismissal order and remand the matter to the district court with instructions to enjoin enforcement of the revised rule. Defendants, however, argue for affirmance either on the grounds relied upon by the district court or on alternative grounds advanced by them before the district court but not addressed in that court’s decision, i.e., lack of standing, lack of subject matter jurisdiction, lack of a case or controversy, and res judicata. We find it unnecessary to address these alternative grounds for affirmance because we conclude, for the reasons set forth below, that the matter is not ripe for adjudication. We must first, however, address the primary ground for the district court’s order — Burford abstention.
II. BURFORD ABSTENTION
“Abstention from the exercise of federal jurisdiction is... ‘the exception, not the rule.’ ” United Services Automobile Ass’n v. Muir, 792 F.2d 356, 360 (3d Cir.1986) (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)), cert. denied, 479 U.S. 1031, 107 S.Ct. 875, 93 L.Ed.2d 830 (1987). The genesis of the Burford abstention doctrine lies in the case bearing that name, which involved a specialized aspect of Texas’ complex regulatory system devised to conserve the state’s oil and gas resources through a well-organized local administrative and judicial decision-making hierarchy. Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943). As subsequent Supreme Court precedent illustrates, Burford abstention is appropriate where a case presents a difficult and technical question of state law involving important state policies such that the exercise of federal jurisdiction would be disruptive of a state’s efforts “to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River, 424 U.S. at 814, 96 S.Ct. at 1245; see also County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189-90, 79 S.Ct. 1060, 1063-64, 3 L.Ed.2d 1163 (1959); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Alabama Pub. Serv. Comm’n v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). However, “[no] attempt at defining the class of cases in which this type of abstention is proper is very precise.” C. Wright, Law of Federal Courts § 52, at 308 (4th ed. 1983).
A review of our own recent Burford abstention jurisprudence illustrates the limited scope of the doctrine’s application. For example, in Muir, 792 F.2d at 364, we held that Burford abstention should not have been applied to an insurer’s challenge to the state agency’s revocation of its license even though the McCarran-Ferguson Act, 15 U.S.C. § 1012 (1982), granted the states exclusive control over the regulation of insurance. Abstention was inappropriate because the issue presented — whether a state law prohibiting ownership of banks by insurance companies was preempted by federal law — did not involve interpretation of any other state statutes, the relevant facts were simple and undisputed, no complicated regulatory scheme was involved, no peculiarly local conditions existed, and no special expertise was required to interpret the statute. 792 F.2d at 365.
Again, in Kentucky West Virginia Gas Co. v. Pennsylvania Public Utility Commission, 791 F.2d 1111, 1115-16 (3d Cir.1986), we held that district court abstention under Burford was inappropriate where the plaintiffs sought injunctive and declaratory relief from a state utility commission’s order on the ground that federal law preempted either the state’s law or the commission’s order or both. We explained that, although a decision on the merits might be disruptive of the state’s efforts to regulate utility rates, the abstention doctrine did not require a withdrawal of federal jurisdiction “merely because resolution of a federal question may result in the overturning of state policy.” Id. at 1116 (quoting Zablocki v. Redhail, 434 U.S. 374, 379-80 n. 5, 98 S.Ct. 673, 677-78 n. 5, 54 L.Ed.2d 618 (1978)).
Finally, in Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 747-48 (3d Cir.), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982), we also concluded the application of Burford abstention was inapposite. There, plaintiffs had alleged a civil rights conspiracy among township officials aimed at destroying their rights to engage in a legitimate land development business through defamation, corruption and fraud. We reached this conclusion even though the case implicated local land use policies and issues.
From this survey of our own decisions, we note that even in such specialized and technical areas of particularly local concern as insurance, utility rates and land use, abstention under Burford will not necessarily be appropriate. In the instant case, the regulation by New Jersey of attorney advertising does not share the usual features of regulatory schemes to which Bur-ford abstention traditionally applies.
Although we have serious doubts as to whether Burford abstention ever would be appropriate where substantial first amendment issues are raised, we need not address this question because, in our view, abstention is not implicated by the regulatory scheme at issue in this case. The work of the Committee on Attorney Advertising, with review by the Supreme Court of New Jersey, does not present the sort of complex, technical, regulatory scheme to which the Burford abstention doctrine usually is applied. Concededly, a state obviously has a substantial interest in regulating attorney advertising, just as it has in the general regulation of the conduct of the bar. However, the regulation of attorney advertising, unlike the regulation of oil and gas conservation involved in Burford, does not involve peculiarly local conditions, is not beyond the understanding of a federal court, and does not require special or technical expertise or interpretation of numerous other state regulations. See Muir, 792 F.2d at 364-65. In fact, the Committee is composed of both lay persons and attorneys and there is nothing in the Supreme Court of New Jersey’s decision creating the Committee to indicate that the Committee’s work should be guided by considerations other than those of reasonableness, common sense and sound judgment. See Petition of Felmeister & Isaacs, 104 N.J. 515, 518 A.2d 188, 189, 205-07 (1986).
We conclude that the exercise of federal jurisdiction to review New Jersey’s revised attorney advertising rule would not be disruptive of the state’s effort to establish a coherent policy concerning a complicated local matter, see Muir, 792 F.2d at 364, and hence that the district court abused its discretion in dismissing plaintiffs’ amended complaint on the grounds of Burford abstention.
III. RIPENESS
The ripeness doctrine, like other justicia-bility doctrines, derives ultimately from the requirement in Article III of the United States Constitution that federal courts are only empowered to decide cases and controversies. “Even when the constitutional minimum has been met, however, prudential considerations may still counsel judicial restraint.” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 n. 12 (D.C.Cir.1986). This court has recognized that considerations of ripeness are sufficiently important that we are required to raise the issue sua sponte even though the parties do not. See Suburban Trails, Inc. v. New Jersey Trans. Corp., 800 F.2d 361, 365 (3d Cir.1986).
The ripeness doctrine addresses questions of timing, i.e., “when in time is it appropriate for a court to take up the asserted claim.” Action Alliance, 789 F.2d at 940 (emphasis in original). The doctrine seeks to avoid entangling courts in the hazards of premature adjudication. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). With regard to administrative agency actions, considerations of ripeness reflect the need “to protect th[os]e agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 148-49, 87 S.Ct. at 1515 (emphasis supplied). See also American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985) (case is not ripe if issue is still poorly formed, application of statute uncertain, or statute not yet effective and dispute cannot be resolved without reference to administration of the statute), aff’d mem, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986). As we explained in Suburban Trails, 800 F.2d at 365, judicial review is premature when an agency has yet to complete its work by arriving at a definite decision.
According to the Supreme Court, questions of ripeness implicate two competing concerns: the fitness of issues for judicial review and the hardship to the parties if judicial consideration is withheld. Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. We take these matters up in turn.
A. Fitness
Whether a question is fit for judicial review depends upon factors such as
whether the agency action is final; whether the issue presented for decision is one of law which requires no additional factual development; and whether further administrative action is needed to clarify the agency’s position, for example, when the challenged prescription is discretionary so that it is unclear if, when or how the agency will employ it.
Action Alliance, 789 F.2d at 940. We look first to the finality of the agency action.
Even taking a flexible and pragmatic view of the finality of agency action, see Suburban Trails, 800 F.2d at 366, finality is absent in this case. Plaintiffs have not, as yet, even undertaken to gain approval of the Committee for the five advertisements that they submitted as exhibits to Isaacs’ affidavit. App. at 40a-44a. Moreover, there is nothing in the record to indicate that any of their proposed advertisements would meet with the Committee’s disapproval. Plaintiffs assert that they have withdrawn certain advertisements from publication in response to the new rule. See supra note 3. However, they have not explained precisely how or why these ads would run afoul of the revised rule; more importantly, they have not given the Committee the opportunity to determine whether the ads comply with the rule.
In its present posture, plaintiffs’ constitutional challenge to the revised attorney advertising rule resembles that of the plaintiffs in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In Williamson, the Supreme Court dismissed plaintiffs’ constitutional challenge to the action of local zoning authorities as premature because plaintiffs had never applied for possibly available variances and hence had never obtained a final decision from the local agency. Id. at 200, 105 S.Ct. at 3123. Williamson involved constitutional challenges under the fifth amendment Just Compensation Clause and the fourteenth amendment Due Process Clause, whereas plaintiffs in the instant case mount a first amendment attack on the revised advertising rule. We do not, however, view this difference as dispositive for purposes of analysis of the ripeness question.
Although the first amendment affords protection to commercial speech, commercial speech traditionally is more susceptible to government regulation than other forms of protected speech because it is considered more objectively verifiable, Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 n. 24, 96 S.Ct. 1817, 1830-31 n. 24, 48 L.Ed.2d 346 (1976), because it is more durable than other forms of speech, id., and because it may be of less constitutional moment, Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557, 562-63 & n. 5, 100 S.Ct. 2343, 2349-50 & n. 5, 65 L.Ed.2d 341 (1980). See also Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 2982, 92 L.Ed.2d 266 (1986). In this regard, we note that the Supreme Court has repeatedly suggested that in the area of commercial speech, prescreening or prepu-blication review of advertisements may be constitutionally sound. See, e.g., Shapero v. Kentucky Bar Ass’n, — U.S. —, 108 S.Ct. 1916, 1923, 100 L.Ed.2d 475 (1988) (although total ban on direct mail solicitation is impermissible, state can regulate abuses and minimize mistakes through requirement that attorneys file proposed solicitation letters with state agency for case-by-case review); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 668, 105 S.Ct. 2265, 2290, 85 L.Ed.2d 652 (1985) (Brennan, J., concurring in part and dissenting in part) (a basic justification for allowing punishment for violations of imprecise commercial regulations is that business person can clarify meaning of arguably vague regulations by consulting with governmental administrators); Central Hudson, 447 U.S. at 571 n. 13, 100 S.Ct. at 2354 n. 3 (commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply, and system of previewing advertising campaigns may be acceptable given adequate procedural safeguards). Therefore, the finality requirement of the ripeness analysis applies in force to plaintiffs’ constitutional challenges to the attorney advertising rule.
In sum, until it is shown that plaintiffs wish to engage in an activity that would be prohibited under the revised attorney advertising rule, their challenge lacks the level of factual specificity necessary to make the matter ripe for adjudication. It may be that plaintiffs’ proposed advertisements will meet with the Committee’s approval, and if that were the outcome of the agency action, there would indeed be no case or controversy to adjudicate because the concrete effects of the agency action would be favorable to plaintiffs. See Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515-16.
Turning to the second and third factors in determining whether the case is fit for judicial review, see swpra pages 536-37, we observe that the case presented by plaintiffs not only requires additional factual development, but the Committee has not been given the opportunity to clarify its position in this case. Cf. Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 2980, 92 L.Ed.2d 266 (Puerto Rico’s statute and regulations restricting advertising of casino gambling are not unconstitutionally vague given narrowing construction adopted by local courts). The considerations highlighted in our discussion of the finality factor apply equally to these other factors. Because plaintiffs have failed to present the Committee with an opportunity to review their advertisements, there is a dearth of factual material in the record referable to these particular plaintiffs and their particular ads. Furthermore, without administrative action by the Committee regarding the specific advertisements proposed by plaintiffs, the Committee’s position is not only unclear, it is purely hypothetical. We believe, in the first instance, that the Committee should be given the opportunity to clarify the rule it is charged with administering.
Therefore, analysis of the Abbott Laboratories “fitness” factor militates in favor of non-ripeness.
B. Hardship
Turning to the second prong of the ripeness test enunciated in Abbott Labs, it is settled that in order for the parties’ hardship to be sufficient to overcome prudential interests in deferral, that hardship must be both immediate and significant. Action Alliance, 789 F.2d at 940. However, we find the record devoid of evidence indicating that plaintiffs would suffer immediate and significant hardship should judicial review of their case be deferred.
We note in this regard that in its first annual report to the Supreme Court of New Jersey, filed December 31, 1987, the Committee noted that, with a few exceptions, it was able to respond promptly to inquiries. Under R. l:19A-3(b), the Committee is required to act on an inquiry at its next meeting following receipt of the request. See First Annual Report for Calendar Year 1987-1988 of the Supreme Court of New Jersey Committee on Attorney Advertising at 7 [hereinafter Committee Report ]. In its first year of operation, the Committee held eight meetings at which it considered 27 formal inquiries and disposed of 23, primarily by letter opinions, with three resolved by formal opinion published in the New Jersey Law Journal. Id. at 2-3. Therefore, it appears that an inquiry addressed to the Committee by plaintiffs seeking an advisory opinion as to the acceptability of their proposed advertisements should meet with a prompt response.
Given the safeguards built into the Committee’s system, in this context of commercial speech we do not believe plaintiffs are denied public access to the federal courts by our requirement that they first engage in the administrative decision-making process before seeking judicial review. Even though plaintiffs challenge the “predominantly informational” standard of the revised rule as unconstitutionally vague, Appellants’ Brief at 16-17, a claim on which we intimate no view at this time, under the present regulatory structure plaintiffs are in no danger of being disciplined without having an opportunity to determine in advance whether their proposed advertisements are lawful. See Petition of Felmeister and Isaacs, 104 N.J. 515, 518 A.2d 188, 206 (1986) (Committee has authority to render advisory opinions at request of attorneys in advance of publication).
In sum, we find that the plaintiffs’ hardship is neither immediate nor significant. To the extent that plaintiffs felt compelled to withdraw certain ads because of the revised rule, see supra note 3, we do not believe that such harm to commercial interests is sufficiently strong to outweigh the unfitness for review we have already described, particularly in light of the Committee’s demonstrated ability to provide advisory opinions in an expeditious manner. In other words, applying the Abbott Laboratories fitness/hardship balance, the scales are clearly tipped in support of the non-ripeness determination.
The district court’s order dismissing this case for lack of ripeness will be affirmed.
. The district court envisioned an expeditious Supreme Court resolution of plaintiffs’ petition based upon defense counsel’s assertion that prompt filing would allow the New Jersey Supreme Court to hear the petition by the end of its then current term in May 1984. See App. at 19a. In fact, the Supreme Court did not hear oral argument on the trial court’s recommendations until October 22, 1984, and did not render its decision until December 10, 1986, almost three years after the district court initially abstained. See Petition of Felmeister and Isaacs, 104 N.J. 515, 518 A.2d 188 (1986). The protracted course of the proceedings in this case does not, however, relieve us from the constraints of the ripeness doctrine, which is a species of the jurisprudence of justiciability, the ultimate constraint upon our jurisdiction.
. It is this revised rule that is the subject of the instant appeal.
. In this regard, the district court observed that "the only ‘evidence’ of injury presented by plaintiffs [wejre assertions that various members of the Committee w[ould] not be prone to approve plaintiffs’ advertisements, as they [wejre individuals who plaintiffs ha[d] encountered in a previous challenge to attorney advertising rules.” App. at 72a.
We note, however, that Isaacs, in his affidavit in support of plaintiffs’ amended complaint, stated that he had stopped publication of newspaper advertising "as a direct and proximate result of the [Supreme Court’s] December 10 opinion” because, in his opinion, the type of advertisements permitted under the revised rule were "unlikely... to draw the public’s attention, or to appeal to the public's need for information in a way that [wajs likely to result in a client’s contacting our firm.” See Affidavit of Hanan M. Isaacs, ¶ 6. App. at 37a. Although not stated with the utmost clarity, we nevertheless believe that the only logical inference to be drawn from this statement is that Isaacs withdrew his advertising for fear of violating the revised rule. We suspect that Isaacs’ reluctance to state his belief forthrightly may have stemmed from a desire to preser 'e his position before the New Jersey Supreme Court, should he be called upon to defend his ads.
. Our research has not disclosed any precedent for applying Burford abstention to a claim that arose under the first amendment nor was defendants' counsel able to provide us with case citations when we raised this question at oral argument.
. Our scope of review of a district court’s decision to abstain under Burford is abuse of discretion. See Kentucky W. Va. Gas Co. v. Pennsylvania Pub. Util. Comm’n, 791 F.2d at 1115.
. For example, the two key standards in the revised rule — "predominantly informational” and “extreme portrayal” — do not appear to require technical or special expertise to apply.
. To the extent that there are strong local interests implicated by this case, we note that they would appear to be outweighed by the federal interest in insuring compliance with the Constitution. See Colorado River, 424 U.S. at 814 n. 21, 96 S.Ct. at 1245 n. 21 (“the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention”) (citation omitted); see also Izzo v. Borough of River Edge, 843 F.2d 765, 768-69 (3d Cir.1988).
. We review the district court’s holding that the case is not ripe for review on a plenary basis. Although few courts have wrestled with the appropriate standard of review, we think it apparent from a review of the caselaw that the question of ripeness is generally viewed as a question of law. See, e.g., Wilmac Corp. v. Bowen, 811 F.2d 809, 812-14 (3d Cir.1987); Suburban Trails, 800 F.
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:
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songer_timely
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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".
Larry BLASSINGAME, Plaintiff-Appellant, v. SECRETARY OF the NAVY, Naval Discharge Review Board and Board for the Correction of Naval Records, Defendants-Appellees. Vietnam Veterans of America, Amicus Curiae.
No. 369, Docket 86-6037.
United States Court of Appeals, Second Circuit.
Argued Dec. 4, 1986.
Decided Jan. 26, 1987.
Stephen P. Younger, New York City (Patterson, Belknap, Webb & Tyler, Michael B. Mukasey, Harman A. Grossman, of counsel), for plaintiff-appellant.
David M. Nocenti, Brooklyn, N.Y., Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., Commander Richard Philpott, Captain Michael McClosky, Office of the Judge Advocate General, Dept, of the Navy, of Counsel), for defendants-appellees.
Barton P. Stichman, Julia A. Trotter, Washington, D.C., Vietnam Veterans of America Legal Services, for Larry E. Blassingame, as amicus curiae.
Before FEINBERG, Chief Judge, NEWMAN and MINER, Circuit Judges.
FEINBERG, Chief Judge:
This case raises a number of questions growing out of attempts by a former member of the United States Marine Corps, Larry E. Blassingame, to upgrade his discharge status from undesirable to honorable. Plaintiff Blassingame appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, J., which dismissed Blassingame’s complaint and granted summary judgment to defendants, the Secretary of the Navy, the Naval Discharge Review Board and the Board for Correction of Naval Records. Blassingame had petitioned the two Boards to upgrade his discharge and was denied relief. For reasons set forth below, we reverse and remand for further proceedings.
I. Background
A. Roles of the Boards. Because the roles and the interrelationship of the Naval Discharge Review Board (the Review Board) and the Board for Correction of Naval Records (the Correction Board) are not well-known and are significant in this case, we describe briefly their respective functions. As provided by.10 U.S.C. § 1553(a) and accompanying regulations, 32 C.F.R. §§ 724.101-724.903, a veteran can obtain review of his discharge status from the Marines by petitioning the Review Board, which was established by the Secretary of the Navy after consultation with the Administrator of Veterans’ Affairs. A veteran is permitted 15 years from the date of his discharge to file a petition with the Review Board. Within that 15-year period, a veteran is entitled to re-petition the Review Board for further consideration, but not on the basis of the same evidence. 32 C.F.R. § 724.217.
As provided by 10 U.S.C. § 1552(a), (b) and accompanying regulations, 32 C.F.R. §§ 723.1-723.11, a veteran can also obtain review of his discharge status by petitioning the Correction Board, which was established by the Secretary of the Navy with approval of the Secretary of Defense. The Correction Board is authorized to “correct any military record... necessary to correct an error or remove an injustice.” A veteran must submit a request to the Correction Board within three years of discovering the error or injustice, unless the Correction Board waives the three-year limitation in the “interest of justice.” Before petitioning the Correction Board, a veteran must exhaust his administrative remedies. 32 C.F.R. § 723.3(c).
Two implications spring from the combination of the requirement of exhaustion of administrative remedies before Correction Board review and the broad power of the Correction Board to correct any military record so as to remedy an error or injustice. The first is that, in situations where the Review Board can provide the requested relief, such as an upgraded discharge, a veteran first petitions the Review Board before he requests the same relief from the Correction Board. See, e.g., June v. Secretary of the Navy, 557 F.Supp. 144, 146-47 (M.D.Pa.1982). See generally Lunding, Judicial Review of Military Administrative Discharges, 83 Yale L.J. 33, 40-42 (1973). In situations where the Review Board cannot grant the requested relief, a veteran may proceed to the Correction Board without first seeking relief from the Review Board. The Review Board cannot provide certain types of relief, such as revocation of a discharge, see 32 C.F.R. § 724.205, nor can it grant any relief requested after the 15-year period in 10 U.S.C. § 1553(a). The second implication is that, in cases where the Review Board has made a decision and committed an error or injustice, the Correction Board can review the Review Board decision and correct the error or injustice, subject to the three-year period of 10 U.S.C. § 1552(b). See Geyen v. Marsh, 775 F.2d 1303, 1309 (5th Cir.1985), reh’g denied, 782 F.2d 1351 (1986); Van Bourg v. Nitze, 388 F.2d 557, 565 (D.C.Cir.1967).
B. Prior Proceedings. Blassingame enlisted in the United States Marine Corps in July 1969 when he was barely 17 years old. He had only a tenth grade education and his test scores placed him in the lowest mental category the Navy allows to enlist. Blassingame subsequently served in Vietnam. In June 1971, he was given an undesirable discharge due to his frequent confrontations with military authorities. Pursuant to 10 U.S.C. § 1553(a), Blassingame petitioned the Review Board in 1973 and again in 1977 to upgrade his discharge to honorable. His request was denied on both occasions. Pursuant to 10 U.S.C. § 1552(b), Blassingame in 1979 petitioned the Correction Board for an upgrade, which was denied on the merits in April 1981.
In November 1981, Blassingame again petitioned the Review Board. The petition was denied initially in February 1983 and then again in December 1983 after the Review Board reconsidered the matter at Blassingame’s request. In February 1984, Blassingame petitioned the Correction Board, which referred the matter to the Judge Advocate General, who furnished an advisory legal opinion. After receiving Blassingame’s comments on the advisory opinion, the Correction Board denied relief in June 1984.
In October 1984, Blassingame brought this suit in federal district court. His original pro se complaint named only the Secretary of the Navy as defendant and sought monetary damages. Blassingame made a claim of erroneous enlistment, alleging that he was under age when he enlisted, and a claim of wrongful discharge contesting his culpability for confrontations with military authorities and alleging racial discrimination.
After the district court appointed pro bono counsel, Blassingame filed an amended complaint in April 1985 substituting a new claim for his earlier claims. This complaint named the Secretary of the Navy, the Review Board and the Correction Board as defendants. For convenience, we shall refer to them collectively as the government. In the amended complaint, Blassingame relinquished his demand for monetary damages. He sought only judicial review of the decisions of the Review Board in 1983 and the Correction Board in 1984, alleging that “defendants acted arbitrarily and capriciously and made determinations unsupported by the evidence and contrary to law, to precedent and to defendants’ internal procedures” and requesting only the equitable relief of an upgrade of his discharge from undesirable to honorable.
The government moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted; alternatively the government requested a more definite statement of Blassingame’s claims. While the case was under advisement in the district court, Blassingame submitted letters to the district court raising additional claims. He reasserted his claim of erroneous enlistment and emphasized that a claim for judicial review of Board decisions was distinct from a claim for judicial review of the underlying discharge. Judge Platt dismissed Blassingame’s complaint, holding that the court lacked subject matter jurisdiction over his claim of wrongful discharge and that both the applicable statute of limitations and the doctrine of laches barred his claim for review of the Review Board and Correction Board decisions. As an alternative disposition of the latter claim, Judge Platt held that the Board actions were not arbitrary and capricious and granted summary judgment to the government, even though the government had not so requested. Judge Platt also dismissed Blassingame’s claim of erroneous enlistment as lacking in factual and legal merit. See Blassingame v. Secretary of the Navy, 626 F.Supp. 632 (E.D.N.Y.1985). This appeal followed.
In this court, Blassingame is supported by an amicus brief from the Vietnam Veterans of America, a nonprofit national organization whose purpose is to advance the interests and advocate the rights of Vietnam era veterans. On appeal, Blassingame presses only his claim for review of the Review Board and Correction Board decisions, and emphasizes that he seeks only the equitable relief of an upgrade of his discharge and no monetary damages. We find Blassingame’s claim against the Correction Board is not barred by the statute of limitations or laches. We also hold that Blassingame did not receive fair notice that Judge Platt would decide that claim by summary judgment. Thus, we reverse the judgment of the district court.
We concern ourselves primarily with Blassingame’s claim against the Correction Board, but not the Review Board. Blassingame has already petitioned both the Review Board and the Correction Board. As noted above, the latter Board has the authority to review the action of the former. Under the circumstances, we need review directly only the action of the Correction Board.
II. Legal Issues
A. Jurisdiction of this Court. Amicus argues as a threshold matter that this court has jurisdiction of Blassingame’s appeal. Blassingame and the government do not address this issue in their briefs. However, this court must determine that jurisdiction exists even when the issue is not raised by the parties. See Clarkson Co. v. Shaheen, 544 F.2d 624, 627-28 (2d Cir.1976). The Federal Courts Improvement Act of 1982, 28 U.S.C. § 1295(a)(2), provides that the Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of appeals of final decisions of a district court “if the jurisdiction of that court was based, in whole or in part” on the Tucker Act. Under the Tucker Act, 28 U.S.C. § 1346(a)(2), district courts have jurisdiction over certain claims for monetary damages against the United States not exceeding $10,000. Since Blassingame has expressly relinquished any claim for monetary relief, and the district court’s jurisdiction of the remaining claim for judicial review of the Correction Board decision was not based on the Tucker Act, we hold that the Federal Circuit does not have exclusive jurisdiction of this appeal. Therefore, this appeal is properly before this court.
B. Jurisdiction of the District Court. Apparently misunderstanding the district court’s opinion, Blassingame argues that the court incorrectly found that it lacked subject matter jurisdiction to review the Correction Board decision. Although the court did not state explicitly that it had subject matter jurisdiction over this claim, it did in fact review the Correction Board decision. As the government concedes, the availability of judicial review of decisions of the Correction Board is not in doubt. See Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); Harmon v. Brucker, 355 U.S. 579, 581-82, 78 S.Ct. 433, 434-35, 2 L.Ed.2d 503 (1958). The exact source of jurisdiction, though, has not always been made plain. We find that Blassingame presents a federal question under 28 U.S.C. § 1331(a) since his claim arises under 10 U.S.C. § 1552(b), and there is no statute precluding judicial review. See Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-85, 51 L.Ed.2d 192 (1977); B.K. Instrument, Inc. v. United States, 715 F.2d 713, 723 (2d Cir.1983). Therefore, we agree with the district court’s implicit finding that it had subject matter jurisdiction to review the Correction Board decision.
C. Sovereign Immunity. On the issue of sovereign immunity, the district court observed that the Correction Board is an “unincorporated federal agenc[y] which Congress has not authorized to be sued either explicitly by statute, or implicitly as the result of being the offspring of a suable entity.” Blassingame, 626 F.Supp. at 639 n. 9. The rule that a federal agency cannot itself be sued, see Blackmar v. Guerre, 342 U.S. 512, 514-16, 72 S.Ct. 410, 411-12, 96 L.Ed.2d 534 (1952), no longer holds. This court in B.K. Instrument, 715 F.2d at 724-25, held that § 702 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., removes the defense of sovereign immunity in actions brought under the federal question statute. Although B.K. Instrument involved a suit against individual government officials sued :n their official capacities, it is clear that the holding in that case should apply equally to suits against an agency in its own name. Section 703 of the APA, as amended in 1976 by the insertion of the second sentence, states:
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.
The legislative history of the amendment reinforces our reading: “When an instrumentality of the United States is the real defendant, the plaintiff should have the option of naming as defendant the United States, the agency by its official title, appropriate officers, or any combination of them. The outcome of the case should not turn on the plaintiff’s choice.” H.R.Rep. No. 1656, 94th Cong., 2d Sess. 18, reprinted in 1976 U.S.Code Cong. & Ad.News 6121, 6138. That the agencies’ sovereign immunity has been waived is also indirectly supported by the amendment, also in 1976, of 28 U.S.C. 1331(a), to explicitly permit suits against “any agency” of the United States. See B.K Instrument, 715 F.2d at 724-25; see also Church of Scientology v. Linberg, 529 F.Supp. 945, 967-69 (C.D.Cal.1981).
D. Statute of Limitations. Congress has established a six-year statute of limitations on civil suits against the United States, 28 U.S.C. § 2401(a), which provides:
Except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.
Amicus argues that this statute does not apply at all to this action because it governs only actions for damages against the United States under the Tucker Act, and Blassingame is not seeking damages and has not specifically named the United States as a defendant. Amicus apparently made these same arguments without success to the Court of Appeals for the Fifth Circuit in Geyen v. Marsh, 775 F.2d at 1306-07. We agree with and adopt the Fifth Circuit's thoughtful analysis of these arguments. Briefly, the Fifth Circuit noted that several circuits have rejected the claim that section 2401(a) applies only to Tucker Act actions. Further, the court found that the merger of law and equity assured that section 2401(a) covers both legal and equitable actions. As to the claim that the United States must be named as a defendant, the court noted that courts have discarded the fiction that an action alleging unlawful conduct by a federal official, or as in this case by an official and an agency, is not an action against the United States. See id.
The central issue regarding the running of the statute of limitations is when Blassingame’s right of action to contest the Correction Board decision accrued. Blassingame argues that this right accrued when that decision was rendered. If we agree with Blassingame on this point, then this suit, based on the Correction Board decision in 1984, is within the six-year limitation period. The government’s view, which prevailed in the district court, is that the limitation period runs from the time of the underlying discharge in 1971 since, according to the government, Blassingame ultimately is contesting the propriety of that action. The government therefore maintains that this suit filed in 1984 is barred by the statute of limitations.
The question of when the right to obtain judicial review of a Correction Board decision accrues under 28 U.S.C. § 2401(a) is still open in this circuit. Several other circuits have recently faced this same question. The Third, Fifth and Tenth Circuits have adopted the view advanced by Blassingame. See Dougherty v. United States Navy Bd. for Correction of Naval Records, 784 F.2d 499 (3d Cir.1986); Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985), reh’g denied, 782 F.2d 1351 (1986); Smith v. Marsh, 787 F.2d 510 (10th Cir.1986); see also Walters v. Secretary of Defense, 737 F.2d 1038 (D.C.Cir.1984) (denying rehearing in banc) (Wald, Mikva, JJ., concurring). The Federal Circuit favors the view urged by the government. See Hurick v. Lehman, 782 F.2d 984 (Fed.Cir.1986). We agree with the view taken by the Third, Fifth and Tenth Circuits.
The question of when the right to obtain judicial review of a Correction Board decision accrues is a difficult one. The government finds support for its position in the historical development of Review Boards and Correction Boards. Before Congress mandated the creation of Review Boards in 1944 and Correction Boards in 1946, a veteran could upgrade his discharge only through a private bill for relief through Congress. Such bills were not subject to judicial review, except for constitutionality. See Harmon, 355 U.S. at 584-85, 78 S.Ct. at 436-37 (Clark, J., dissenting); Friedman v. United States, 310 F.2d 381, 404, 159 Ct.Cl. 1 (1962), cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963). The government argues that since the relief provided by Correction Boards is a substitute for private bills that were unreviewable except for constitutionality, “it is perfectly consistent” that Correction Board action should also be immune from review when suit is brought more than six years after discharge. Thus, the government contends that the burden should be on Blassingame to demonstrate that Congress intended to permit judicial review beyond the six-year limitation period beginning from the date of discharge.
The history described by the government is not without persuasive effect. However, this historical argument was raised by the dissent in Harmon, 355 U.S. at 584-85, 78 S.Ct. at 436-37 (Clark, J., dissenting) and was implicitly rejected by the majority since the Supreme Court did review a Review Board decision in that case, id. at 581-82, 78 S.Ct. at 434-35. We decline to adopt the position the government urges because the Supreme Court has held that agency action is subject to judicial review unless there is “clear and convincing evidence” that Congress intended to foreclose such review. See Bowen v. Michigan Academy of Family Physicians, — U.S. —, 106 S.Ct. 2133, 2135-36, 90 L.Ed.2d 623 (1986); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857-58, 44 L.Ed.2d 377 (1975); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). Although we acknowledge the vast experience of the Federal Circuit and its predecessor regarding challenges by veterans to their discharges, we note that the leading case relied on by that circuit, Friedman, was decided in 1962, before it became clearer over the intervening years that there is a presumption in favor of judicial review of agency action.
The essential difficulty with the government’s argument is that it completely insulates from judicial review any Board decision rendered more than six years from discharge, even though Congress has authorized both the Review Board and the Correction Board to act thereafter. Congress has granted veterans 15 years from discharge to petition the Review Board, 10 U.S.C. § 1553(a). The government argues that a veteran who petitions the Review Board after year six and before year fifteen, then petitions the Correction Board within three years thereafter, 10 U.S.C. § 1552(b), and subsequently brings suit promptly in federal court, as Blassingame did, is precluded from obtaining judicial review. We find it implausible that Congress intended to deny, in such obscure manner, judicial review of Board decisions where a veteran requested relief from the two Boards within the statutory period. More important, there is no “clear and convincing evidence” of such purpose by Congress. We conclude, therefore, that the right to obtain judicial review of a Correction Board decision accrues at the time of the decision. See Geyen, 775 F.2d at 1309-10; Smith, 787 F.2d at 511-12; and Dougherty, 784 F.2d at 501-02. Consequently, Blassingame’s suit is not barred by the statute of limitations.
We have adopted what we believe is an equitable rule in that it allows all veterans exactly six years to obtain judicial review of an adverse Correction Board decision. The position urged by the government, in contrast, would give some veterans the full six years provided by 28 U.S.C. § 2401(a), others a period of less than six years and still others no review at all, depending on the time that had elapsed between discharge and the Correction Board decision. For example, a veteran who receives an adverse Correction Board decision less than six years after discharge would have the remainder of the six-year limitation period to obtain judicial review, which can be some period of time between one day and six years. And, a veteran who receives an adverse Correction Board decision more than six years after discharge would have no opportunity to obtain judicial review.
In pressing its contention that a veteran’s right of action with respect to a wrongful discharge accrues at the time of discharge, the government argues that a court reviewing a Correction Board decision cannot avoid looking into the circumstances of the discharge itself. The government emphasizes that many years or even decades may pass between discharge and Board decision, particularly in those cases where “in the interest of justice” the Board waives the three-year limitation period of 10 U.S.C. § 1552(b) on obtaining administrative relief. The government alleges that over the course of time, some of the documents and witnesses relied on in the original discharge decision may no longer be available, which would impede the government’s ability to justify the discharge to a reviewing court.
The relevant standard of review set forth in the APA, 5 U.S.C. § 706, however, answers these contentions. Pursuant to that section, a reviewing court shall not set aside an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Supreme Court has explained:
To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (citations omitted). Rarely should the court conduct a de novo inquiry into the matter being reviewed. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Citizens to Preserve Overton Park, 401 U.S. at 414-15, 91 S.Ct. at 822-23. Instead, the court generally should make its decision on the basis of the factual record as it appeared before the agency. See Florida Power & Light Co., 470 U.S. at 744, 105 S.Ct. at 1607.
It is true, as the government argues, that a reviewing court must take note of the facts of the underlying discharge in determining whether the Correction Board decision violates the arbitrary and capricious standard of the APA, and that in cases where documents and witnesses have been lost over time, the Board’s own review of the original discharge decision may be hampered. But the power of the Board to review a petition submitted after the three-year limitation period of 10 U.S.C. § 1552(b) suggests that the interest of justice may outweigh any harm caused by an incomplete record. Moreover, the absence of documents and witnesses reasonably unavailable is not a basis for a court to set aside a Board decision because under the APA, the court should assess the lawfulness of the Board decision in light of the factual record at the time of the decision. See Geyen, 775 F.2d at 1309.
The government argues that Blassingame’s position allows a veteran to circumvent the six-year limitation period of 28 U.S.C. § 2401(a) on a veteran’s right of action with respect to a wrongful discharge simply by petitioning for Correction Board review after the six-year period, obtaining an “interest of justice” waiver for obtaining administrative relief, 10 U.S.C. § 1552(b), and then seeking judicial review of an unfavorable Board decision. However, a court’s direct review of a veteran’s claim of wrongful discharge is distinct from its review of a Correction Board decision refusing an upgrade. Though the factual record in some if not many instances may be similar for both types of claims, the focus of the former is on the action of discharge officials whereas the focus of the latter is on the action of the Board. Discharge officials fulfill a function different from that performed by the Correction Board and the Review Board, and apply policies and procedures in effect at the time of discharge. In contrast, Naval regulations specifically provide that the Review Board take into account subsequent policies and procedures when reviewing the original discharge decision. See 32 C.F.R. § 724.903 (1986). It follows, then, that in reviewing the action of the Review Board, the Correction Board “must determine whether the [Review Board] has properly applied the new standards.” See Geyen, 775 F.2d at 1309. By obtaining judicial review of a Correction Board decision, a veteran therefore does not circumvent the statute of limitations for directly challenging the discharge itself in a judicial proceeding, but instead secures review of a separate claim for review of the agency action. See id. at 1306; Smith, 787 F.2d at 511-12.
Several other points raised by the government require less discussion. Relying on United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979), the government points out that waivers of sovereign immunity must be strictly construed and argues that in construing a statute of limitations, which is a condition of that waiver, a court should not “extend the waiver beyond that which Congress intended.” However, Congress, as we have shown, has expressed its intent to permit judicial review of agency action and the construction of section 2401(a) offered by the government conflicts with that intent.
Regarding the Correction Board’s discretionary review in the interest of justice of petitions submitted after the three-year period of § 1552(b), the government argues that increasing the availability of judicial review may diminish the willingness of the Board to waive the limitation. But the possibility of judicial review should have no bearing on Correction Board decisions to waive that limitation; those decisions must be made, as mandated by Congress, in the interest of justice. We expect that the Correction Board will continue to waive the limitation where justice so requires.
Additionally, the government contends that our construction of section 2401(a) will lead to different results for litigants who bring suit in this circuit seeking only review of agency action as compared to those seeking monetary damages of $10,000 or less in addition to such review. Appeals by the former group lie in this court, where litigants would be permitted to maintain a suit filed within six years of the final agency action. On the other hand, appeals by the latter group lie only in the Federal Circuit, see 28 U.S.C. §§ 1295(a)(2), 1346(a)(2), where litigants would be permitted to maintain only a suit filed within six years of the date of discharge. Though we recognize this potential for different results, we do not believe that it requires us to adopt a reading of section 2401(a) that we conclude is not supported by Congressional intent.
E. Laches. In addition to relying on the statute of limitations, Judge Platt found that laches bars Blassingame’s suit. 626 F.Supp. at 641 n. 12. Judge Platt presumed, based on his erroneous finding that Blassingame’s right of action accrued 14 years earlier upon discharge, that Blassingame had inexcusably delayed his suit beyond the six-year statute of limitations. Judge Platt also found that the government would suffer prejudice because witnesses “would be difficult to locate and even if they were traced memories of events and facts fade after 14 years.” Id. We have found, however, that Blassingame’s right of action accrued at the time of the Correction Board decision. Since Blassingame brought suit within months of that decision, he obviously did not delay unduly. We have also noted that judicial review of a Correction Board decision generally does not involve a de novo inquiry but is based on the record as it appeared before the Correction Board. Therefore, the defense of laches is inapplicable to Blassingame’s claim.
F. Summary Judgment. Judge Platt on his own converted the government’s motion either to dismiss the complaint or to require a more definite statement of Blassingame’s claims into a motion for summary judgment, which the judge then granted to the government. Such a conversion is permitted where the losing party is not taken by surprise by the court’s action. See, e.g., In re G. & A. Books, Inc., 770 F.2d 288, 294-95 (2d Cir. 1985), cert. denied, — U.S. —, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986); Cook v. Hirschberg, 258 F.2d 56, 57-58 (2d Cir. 1958); Villante v. Department of Corrections, 786 F.2d 516, 520-21 (2d Cir.1986). “The essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings. Resolution of this issue will necessarily depend largely on the facts and circumstances of each case.” In re G. & A. Books, 770 F.2d at 295. In this case, the government stated explicitly in its motion papers that it “intend[s] to move for summary judgment in the event this motion to dismiss is denied.” Blassingame understandably was surprised when, under these circumstances, the court acted on its own to grant summary judgment. Since the court thus deprived Blassingame of notice and an opportunity to respond to the motion for summary judgment, we hold that the grant of summary judgment was improper. See Chandler v. Coughlin, 763 F.2d 110, 113 (2d Cir.1985). It may be that Blassingame cannot succeed in his opposition to a government motion for summary judgment, but at least he should have a fair chance to try.
Based on the foregoing, we reverse the dismissal of Blassingame’s claim against the Correction Board and the grant of summary judgment. We remand this case to the district court for further proceedings.
. 10 U.S.C. § 1553(a) provides:
§ 1553. Review of discharge or dismissal
(a) The Secretary concerned shall, after consulting the Administrator of Veterans’ Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative. A motion or request for review must be made within 15 years after the date of the discharge or dismissal.
. 10 U.S.C. § 1552(a), (b) provides:
§ 1552. Correction of military records: claims incident thereto
(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. Under procedures prescribed by him, the Secretary of Transportation may in the same manner correct any military record of the Coast Guard. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.
(b) No correction may be made under subsection (a) unless the claimant or his heir or legal representative files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later. However, a board established under subsection (a) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.
. The district court in this case so held. 626 F.Supp. at 637.
. Jurisdiction of such claims for more than $10,000 lies in the United States Claims Court, pursuant to 28 U.S.C. §
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Robert L. TYSON, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 710 PENSION FUND, Defendant-Appellee.
No. 86-1859.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 8, 1986.
Decided Feb. 12, 1987.
Stephen B. Horwitz, Burns, Sugarman & Orlove, Chicago, 111., for plaintiff-appellant.
Stephen Feinberg, Asher, Gittler & Greenfield, Ltd., Chicago, 111., for defendant-appellee.
Before CUMMINGS and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
POSNER, Circuit Judge.
This ERISA suit against a union pension fund seeks benefits under a pension plan. See 29 U.S.C. § 1132(a)(1)(B). The plaintiff, Robert Tyson, is a former truck driver for Charles Levy & Co. He claims to be entitled to a disability pension under the pension plan established by the collective bargaining agreement between his union (a teamsters local) and Levy. The district court granted summary judgment for the pension fund on the ground that awarding the pension would violate the Taft-Hartley Act.
On February 6, 1981, Tyson suffered a totally and permanently disabling injury in an auto accident. The pension plan entitles an employee who becomes totally and permanently disabled to a disability pension, beginning immediately, if he has worked either for 15 complete years or for 14 complete years plus a total of 35 weeks in the first and last year that he was employed. Otherwise he must wait till he reaches age 65 to realize any vested pension rights. Tyson had worked 14 complete years plus 18 weeks his first year and he therefore needed 17 weeks in his last year, 1981, to qualify for the pension. Although disabled after working only 6 weeks in 1981, he was credited for that year with an additional 8 weeks of accrued vacation and disability pay (the collective bargaining agreement requires the employer to pay the employee for 4 weeks after a disabling injury), making a total of 32 weeks in his first and last years (18 + 6 + 8) — which was 3 weeks short. In January 1982, almost a year after Tyson had stopped working for Levy, Levy paid him 4 weeks of additional wages in recognition of his long years of service for Levy and the fact that his employment had been cut short by the accident. Tyson wants to add those 4 weeks to his other 1981 credits. If he succeeds, he will be entitled to the disability pension.
The district court thought that the addition of the 4 weeks to Tyson’s 1981 credits was blocked by section 302 of the Taft-Hartley Act, 29 U.S.C. § 186, which makes it unlawful for an employer to pay a union or other representative of its employees — which the pension fund is conceded to be. There is an exception for union pension and welfare funds but it is subject to various limitations, of which the one pertinent here is that “the detailed basis on which such payments are to be made [by the employer to the fund] is specified in a written agreement with the employer.” 29 U.S.C. § 186(c)(5)(B). The district judge thought this proviso not satisfied here. En route to this conclusion he expressed skepticism about most of the fund’s contractual arguments, but the focus of his decision was the fund’s statutory ground, and we regard the contractual issues as still open; Tyson conceded as much at the oral argument of the appeal.
Article 29 of the collective bargaining agreement, captioned “Pension Plan,” requires the employer to contribute to the union’s pension fund a fixed amount per week for each employee covered by the agreement who has been on the employer’s payroll for at least 30 days. It also authorizes the making of “appropriate trust agreements necessary for the administration of such fund.” Levy never made a contribution for the additional 4 weeks that Tyson wants credited to 1981, but the fund admits it would have refused to accept it, on the ground that accepting it would violate the statute; and the parties appear to assume that if the fund would accept the contribution, Levy would make it. The fund’s position (and hence the district court’s decision) is correct if “the detailed basis” for such a contribution is not “specified in a written agreement with the employer.”
It is not specified in the collective bargaining agreement itself. But section 1.25 of the trust agreement that sets forth the details of administration provides:
Each Employee will be credited with an Hour of Work for:
(a) Each hour for which an Employee is paid, or entitled to payment by an Employer for duties performed____
(b) Each hour, up to a maximum of 501 hours, for which an Employee is directly or indirectly paid or entitled to payment by the Employer for reasons (such as vacation, holiday, illness, incapacity, including disability, layoff, jury duty, military duty or leave of absence) other than the performance of duties (irrespective of whether the employment relationship has terminated)____
This section makes clear that an employee such as Tyson is entitled to pension credit for certain hours that he does not actually work, even if, as here, he is paid for those hours after he has ceased to be employed. If the 4 weeks for which he was paid in 1982 are added to the 8 weeks for which he received vacation and disability pay in 1981 and which the fund does not contest, the total (12 weeks = 480 hours) is below the 501-hour ceiling.
The pension fund argues that section 1.25 was not meant to embrace “gifts,” but there are two answers to this. The first is that the provision does not in terms exclude gifts; at least the words do not compel such a reading. The expression “for reasons ... other than the performance of duties” does not appear to require nonaltruistic “reasons”; the reasons listed between the parentheses are illustrative rather than exhaustive. Furthermore, to describe the 1982 payment to Tyson as a “gift” is surely a mistake. The world of employee compensation does not divide neatly into legally required payments on the one hand and gifts on the other. A bonus, for example, is neither; nor is severance pay; nor — what indeed is a form of severance pay — is a payment made in recognition of long years of work abruptly cut off by a tragic accident. Many of the mutual understandings on which the effective functioning of labor markets depends are not reduced to legally enforceable commitments, because the parties don’t want the uncertainty and expense of a lawsuit if they have a disagreement. See Epstein, In Defense of the Contract at Will, 51 U.Chi.L.Rev. 947 (1984). (As a matter of fact, employment at will remains the dominant form of employment relationship in this country.) Nevertheless those nonbinding mutual understandings are commercial rather than altruistic. It is true that when as in this case the employment relationship is defined by a collective bargaining agreement, payments to workers of compensation in excess of what the agreement specifies may, by undermining the union’s status as exclusive bargaining representative of the workers, violate the National Labor Relations Act. See e.g., NLRB v. Everbrite Electric Signs, Inc., 562 F.2d 405 (7th Cir.1977) (per curiam). But there is no suggestion that Levy’s payment of an additional 4 weeks’ wages to Tyson after he had ceased being an employee of Levy’s raises any problems under the agreement and hence under the Act. Indeed, the fact that “gifts” by an employer to his unionized employees could raise problems under the Act is one more piece of evidence that the payment Levy made to Tyson in 1982 is not properly described as a gift.
A better argument for the pension fund is that since Levy had already paid Tyson the 4 weeks disability pay that the collective bargaining agreement required Levy to pay him, the additional payment in 1982 could not have been by reason of disability and therefore cannot be fitted within section 1.25. But the section is not clearly limited to payments made under legal obligation. The words “entitled to payment” might have that force; that is, they could be intended to protect the employee in the event that the employer, though contractually obligated to pay him, fails to do so. But they need not be so read; the disjunctive treatment of “paid” and “entitled to be paid” could signify that the employee was entitled to credit for money actually paid him whether or not legally due him, plus money legally due him whether or not actually paid him. The payment made in 1982 was certainly made by reason of Tyson’s disability, perhaps in conjunction with his long years of service — a factor not excluded by the section, though not specifically listed in it.
The fund’s best argument is that to allow a gratuitous payment to be credited would enable an employer to transfer great wealth, at small cost to itself, from the fund to a former employee. The contribution that Levy would need to make to the pension fund (if the fund would accept it) on the payment in 1982 that put Tyson over the hump is only about $200; if this payment entitled him to a pension it would mean that for a trivial outlay Levy had bought Tyson an annuity of $375 a month for the 12 years until his regular pension vests at age 65. The present value of such an annuity is on the order of $30,000. In effect, at the discretion of the employer, a 14 years and 35 weeks vesting period is lowered to 14 years and 31 weeks. (It can’t be shortened much beyond this, however, because of the 501-hour limitation in section 1.25.)
These arguments are respectable and may, singly or together, in the end demonstrate that as a matter of contract interpretation Tyson is not entitled to the disability pension. (He would not be completely out in the cold; he is receiving a social security disability pension.) But they do not show that there is no “detailed basis” for a contribution by Levy, and hence that the statute bars a pension for Tyson. The detailed basis is section 1.25.
The existence of interpretive uncertainty does not bring section 302 of the Taft-Hartley Act into play. Section 302 was primarily designed to prevent employers from bribing union officers and union officers from extorting money from employers. Arroyo v. United States, 359 U.S. 419, 425-26, 79 S.Ct. 864, 868, 3 L.Ed.2d 915 (1959); United States v. Ryan, 225 F.2d 417, 426 (2d Cir.1955) (L. Hand, J., dissenting), rev’d, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335 (1956); Waggoner v. Dallaire, 649 F.2d 1362, 1366 (9th Cir. 1981). The present case is remote from this policy. In making an additional payment to Tyson a year after the accident forced him to stop working, Levy was not trying to bribe union officers — whether in order to undermine the loyalty of the teamsters union to the teamsters employed by Levy or for any other reason. Nor was Levy being extorted to provide favors for union officers. It was merely trying to get a pension for its former employee — a pension, it is true, that would be paid for very largely by other employers; but whether or not this feature gives them a basis for squawking, or violates the collective bargaining agreement, it does not affront the purposes behind the statute.
Granted, a statute may have a life of its own, and because of its strict and broad wording forbid practices remote from the draftsmen’s contemplation. Legislators often make a statute overinclusive in order to be sure there are no loopholes; we saw an example of this recently in FDIC v. O’Neil, 809 F.2d 350, 352 (7th Cir.1987). But even read literally, section 302 does not carry the day for the pension fund. The specific terms on which hours are to be credited are set out in detail and in writing in section 1.25 of the plan agreement, which can of course be considered along with the collective bargaining agreement in deciding whether the statutory requirement has been satisfied. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1263 (9th Cir.1984). No writing, however detailed, can eliminate all questions of interpretation; the existence of a large body of case law arising from disputes over the meaning of the Internal Revenue Code shows this. The existence of an interpretive question does not preclude the pension fund from accepting employer contributions.
It is true, but not helpful to the fund, that the statutory requirement of a detailed written basis for pension and welfare benefits appears to have been intended not only to back up the statute’s anti-bribery and anti-extortion policies but also to limit the discretion of unions in administering such funds, lest union officers use the discretion to punish their enemies and reward their friends. See 93 Cong.Rec. 4746-47 (1947); Denver Metropolitan Ass’n v. Journeyman Plumbers & Gas Fitters Local No. 3, 586 F.2d 1367, 1372-73 (10th Cir.1978). How detailed is detailed enough is not discussed in the cases; but section 1.25 of the plan agreement in this case is detailed enough to transform a dispute over the exercise of discretion (a dispute the persons vested with the discretion are almost certain to win) into a dispute over the meaning of a document, a dispute susceptible of objective resolution by a court or arbitrator. That, we believe, is sufficient detail to satisfy the statute. And in fact this case involves no exercise of discretion by the fund’s managers or anyone else connected with the union.
If the fund’s statutory argument were accepted, employees would find it hard to qualify for pensions from union funds. For any time the pension plan was not absolutely crystalline in its application to an employee’s situation, the fund would refuse to accept contributions and he would therefore fail to qualify. Such an interpretation of section 302 would throw an unintended monkey wrench into the operation of union pension plans and would endanger the pension rights of many employees covered by such plans.
The collective bargaining agreement provided an adequately detailed written basis for Levy to contribute to the fund for the 4 weeks pay that it gave Tyson in 1982. Whether, with this contribution, he is entitled to the pension is a question of contractual interpretation that the district court did not answer. The court did say that since the fund could not credit the contribution to 1981, it would not be acting irrationally in crediting it to 1982; but with the premise removed, the conclusion falls. Indeed, but for the statute the fund would apparently have no objection to crediting the payment to 1981 — though since the contribution was never made, the fund has never had occasion to decide what year to credit it to.
We hold only that the statute is not a bar to Tyson’s claim. We remand the case for a determination of his contractual entitlement.
Reversed and Remanded, With Directions.
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_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Manuel TALAVERA, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Defendant-Appellee.
No. 76-3595
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 2, 1977.
Rehearing Denied April 6, 1977.
Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., for defendant-appellee.
Before GODBOLD, HILL and FAY, Circuit Judges.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
PER CURIAM:
On April 14, 1976, Manuel Talavera, a Florida state prisoner, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Petitioner was convicted in the Circuit Court of the Seventeenth Judicial Circuit and sentenced to a prison term of 120 years. His convictions were affirmed on direct appeal. Talavera v. State, 314 So.2d 22 (Fla.App.1975). The district court in an exhaustive opinion dismissed the petition. We vacate and remand the case for further proceedings.
Petitioner was convicted in state court of robbery and three (3) counts of false imprisonment. He contends that there was a total lack of competent evidence to sustain his convictions. However, a fingerprint found on the handcuffs used on two of the hostages was identified as that of the petitioner. Several witnesses testified that one of the robbers was wearing a grey suit. A forensic chemist found that the fibers in petitioner’s “cut-off” grey pants matched the fibers in a certain grey suit-jacket which was found in the vicinity where the getaway car was abandoned. Finally, while petitioner presented one Jerry Helms who testified that he and an unnamed accomplice had committed the robbery and not petitioner, Helms spoke with a Southern accent. The hostages testified that neither of the perpetrators had a Southern accent. Moreover, a government rebuttal witness testified that on the day that Helms had initially confessed to the crime, he had seen Helms and petitioner conversing for 30 to 45 minutes.
Matters concerning the sufficiency of the evidence are not cognizable on federal habeas corpus unless the record indicates that a state prisoner was denied due process of law. Colbroth v. Wainwright, 466 F.2d 1193, 1194 (5th Cir. 1972). However, the issue of the sufficiency of the evidence does not present a due process question where there is conflicting testimony supporting a state conviction. Jenkins v. Wainwright, 488 F.2d 136, 137 (5th Cir. 1973), cert. denied, 417 U.S. 917, 94 S.Ct. 2620, 41 L.Ed.2d 222 (1974). Since there is some evidence in this case against petitioner, there is no sufficiency of the evidence problem rising to constitutional proportions for habeas corpus relief. Dreske v. Holt, 536 F.2d 105 (5th Cir. 1976); Jackson v. State of Alabama, 534 F.2d 1136 (5th Cir. 1976).
Petitioner next challenges a search of his rental automobile as violative of his Fourth Amendment rights. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the United States Supreme Court held “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 482, 96 S.Ct. at 3046. This decision of the Supreme Court was rendered subsequent to the time that the district court in the instant case considered the merits of petitioner’s claim. This case presents the question of the proper disposition of Fourth Amendment claims on the appellate level in light of this Supreme Court decision.
This court appears to have embarked upon two courses of conduct. In some cases we have undertaken on appeal to review the record to determine whether the state has provided an opportunity for full and fair litigation of the Fourth Amendment claim. See e. g. Stinson v. State of Alabama, 545 F.2d 485 (5th Cir. 1977); Flood v. State of Louisiana, 545 F.2d 460 (5th Cir. 1977); George v. Blackwell, 537 F.2d 833 (5th Cir. 1976). In other cases we have vacated the decision of the district court and remanded so that the trial court might determine this issue in the first instance. See e. g. White v. State of Alabama, 541 F.2d 1092 (5th Cir. 1976); Caver v. State of Alabama, 537 F.2d 1333 (5th Cir. 1976). The differing courses of action appear to depend upon the circumstances and state of the record in each case.
Thus, in the first line of cases the record appears to have been sufficiently clear so as to make the issue as to whether or not the state court had provided an opportunity for full and fair litigation of Fourth Amendment claims certain beyond peradventure. A remand under these circumstances would be a futile gesture and expensive in terms of judicial economy. In the second line of cases the record appears not to have been so clear. Under these circumstances, the appropriate appellate response is to remand the case to the district court in order to allow the parties “a chance to be heard upon the legal standard announced in Stone v. Powell.” Caver v. State of Alabama, supra at 1336.
In the case sub judice the district court apparently based its conclusions with regard to the petitioner’s Fourth Amendment claim upon a review of the trial transcript. However, there were two preliminary hearings which focused on the Fourth Amendment issue that were not before the district court. In addition, of course, petitioner did not address himself to the sufficiency of the state court proceedings in his habeas' petition. Under these circumstances we conclude that the case should be remanded so that the parties might address the question of opportunity for full and fair litigation of the Fourth Amendment claim before the district court, and that court may be afforded the opportunity of determining that question.
VACATED AND REMANDED.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
CROWN ZELLERBACH CORPORATION, Plaintiff-Appellant Cross-Appellee, v. INGRAM INDUSTRIES, INC., et al., Defendants-Appellees, and London Steam-Ship Owners’ Mutual Insurance Association, Limited, Defendant-Appellee Cross-Appellant.
No. 82-3749.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 1984.
Opinion on Granting Rehearing En Banc Jan. 21, 1985.
Taylor, Porter, Brooks & Phillips, William Luther Wilson, Baton Rouge, La., for plaintiff-appellant cross-appellee.
Monroe & Lemann, Nigel E. Rafferty, Richmond M. Eustis, New Orleans, La., for Ingram Industries.
Terriberry, Carroll, Yancey & Farrell, Benjamin W. Yancey, New Orleans, La., for London S.S. Owners.
Before BROWN, THORNBERRY, and TATE, Circuit Judges.
PER CURIAM;
What took 16 years for our answer in Nebel Towing to the enigmatic 4-1-4 riddle of the Jane Smith, is now back again in part 13 years later. Based presumably on Nebel Towing the District Court granted judgment against the excess P & I Underwriter for nearly $2,000,000 in excess of the owner’s judicially declared limited liability. Faithful as we are and must be to Nebel Towing, the Court, by divided vote holds that the trial court was correct in this judgment and we affirm as to this issue. As to all other issues the Court unanimously affirms the judgment of the District Court.
This appeal grows out of an allision between the tow in tow of the tug F.R. BIGE-LOW and Crown Zellerbach’s (CZ) water intake structure on the Mississippi River above Baton Rouge. Involved also was the tug’s (and owners’) maritime limitation of liability proceeding in which CZ brought a Louisiana direct action against the prime and excess P & I Underwriters of the vessel owner/operator. After trial, the District Court held that Ingram, the tug owner/operator, was liable, but was entitled to limit its liability to the value of the vessel and the pending freight. The excess P & I underwriter was held liable for nearly $2,000,000 of the portion of the CZ’s damages that exceeded the limited liability of the vessel owner. We find no error in the court’s holdings (i) of no “privity or knowledge” by the tug owner, (ii) the valuation of the vessel, (iii) the computation of CZ’s damages, and (iv) the award of pre-judgment interest from a date later than the accident. However, the Court by divided vote determines that the District Court was free of error in holding the tug owner’s underwriter liable beyond the dollar limits fixed, or ascertainable, in the P & I policy. Accordingly, we affirm.
a -i ah u ,7 How it All Happened
On February 3, 1979, the tugboat F.R. BIGELOW owned (or bareboat chartered) by Ingram Industries,' Inc. (Ingram), while pushing 15 loaded barges down the Mississippi River in heavy fog and rain, caused its forward lead barge to come into contact with and damage Crown Zellerbach’s (CZ) water intake structure, on the Mississippi above Baton Rouge. Shortly after this incident, CZ began to repair the structure, but these repairs were interrupted on May 18, 1979, when another tugboat collided with the structure and damaged the remaining portion. The structure was not rebuilt in kind, but was rebuilt in a different form.
Suit was filed by CZ against the tugboat F.R. BIGELOW, and Ingram, her bareboat charterer, in April of 1979. Subsequently, the complaint was amended to include Cherokee Insurance Company, the prime P & I insurer of Ingram, with a policy limit of $1,000,000, and London Steam-Ship Owners’ Mutual Insurance Association, excess P & I insurers of Ingram, with a deductible franchise of $1,000,000.
In its answer to the suit based upon the accident of February 3, 1979, Ingram, the J Dt chartered-owner/operator of the F.R. BIQELOW sought limitation of its liability to the value of the vessel plus freight then pending. 46 U.S.C. § 183. Ingram stipulated liability for striking the structure, and the issues of damages and limitation of liability were tried. Following trial, the District Court entered judgment in favor of CZ in the “total sum” of $3,948,210.31, with pre-judgment interest from December 11, 1980. The District Court granted Ingram’s prayer for limitation of liability, valued the vessel at $2,134,918.88 and limited the owner’s liability to that amount. Cherokee’s prime P & I policy was for $1,000,000. In tabular form, the District Court decreed the total sum of CZ’s judgment as follows:
(a) Total Damages to CZ $3,948,210.31
(b) Payable by Owner and Cherokee
Prime P & I $1,025,000.00
(c) Payable by Owner and London Steam
Excess P & I 1,109,918.88
(d) Owner’s Limited Liability 2,134,918.88
(e) Balance by London. Steam Excess P & I $1,813,291.44
Following the judgment, Ingram and its two P & I underwriters made payments up to the limits of Ingram’s fixed liability ($2,134,918.88).
On appeal, CZ raises several issues as errors in the District Court’s judgment, all of which we affirm. London Steam-Ship Owners’ Mutual Insurance Association challenges that portion of the District Court’s judgment holding that underwriter liable for the amount ($1,813,291.44) of the plaintiff’s claim over and above Ingram’s fixed limited liability ($2,134,918.88). Affirming the District Court by a divided vote on that issue obviously warrants publication of our opinion.
1.
Limitation of Liability
2.
Limitation: Valuation of the Vessel **
3.
Effect of Stipulation of Damages**
4.
Pre-Judgment Interest " *
5.
P & I Underwriter Liable in Excess Limited Liability Amount
For its protection against claims for damage to piers and other fixed (non-vessel) structures, Ingram, as chartered owner of the tug BIGELOW had two P & I covers. The prime cover was with Cherokee, the amount of insurance being specified as $1,000,000. London Steam-Ship Owners’ Mutual Insurance Association, Ltd. (London Steam-Ship), through A. Bilbrough and Company, as managers, dove-tailing Cherokee’s cover with a deductible franchise $1,000,000 supplied an excess P & I cover in accordance with the Rules of the Association.
Without specific articulation of the reasons for its decision, the trial court — obviously feeling bound by Nebel Towing — held the P & I underwriter liable for approximately $2,000,000 more than the owner’s limited liability.
Despite the dissent to the denial of rehearing en banc in Nebel Towing and criticism of that opinion we are bound by that decision and to justify a different result in this case the Court would have to demonstrate that this case and the rationale presented here is different from that in Nebel Towing.
Unable to find any valid distinction, and bound by Nebel Towing, we are both bound and persuaded that the District Court was correct in holding the P & I underwriter liable for this excess amount.
Conclusion
The upshot is that the Court affirms the holding of the District Court.
AFFIRMED.
. Olympic Towing Corp. v. Nebel Towing Co., Inc., 419 F.2d 230, 1969 A.M.C. 1571 (5th Cir. 1969) cert, denied, 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970); see id., 419 F.2d at 238 (Brown, C.J., dissenting from denial of rehearing en banc).
. Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806, 1954 A.M.C. 837 (1954).
Only this issue has precedential value. Local Rule 47.5 provides
The publication of opinions that have no prec-edential value and merely decide particular cases on the bases of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.
Pursuant to that Rule the Court has determined that the non-precedential portions of this opinion should not be published. The places at which the published opinion omits parts of the lengthy unpublished opinion are specifically indicated by an **.
Not to be published. See note * supra.
. See Biezup & Abeel, The Limitation Fund And Its Distribution, 53 Tul.L.Rev. 1185 (1979); Bu-glass, Limitation of Liability From A Marine Insurance Viewpoint, 53 Tul.L.Rev. 1364 (1979); Kierr, The Effect Of Direct Action Statutes On P & I Insurance, On Various Other Insurances Of Maritime Liabilities, And On Limitation On Shipowner’s Liability, 43 Tul.L.Rev. 638 (1969).
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Edwin S. LELAND, Plaintiff-Appellant, v. FEDERAL INSURANCE ADMINISTRATOR, United Services Automobile Association, Defendants-Appellees.
No. 90-3074.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1991.
Decided May 22, 1991.
Grover Gray Wilson, argued (Urs R. Gsteiger, on brief), Petree, Stockton & Robinson, Winston-Salem, N.C., for plaintiff-appellant.
Ellen Maren Neubauer, Fed. Emergency Management Agency, Washington, D.C., and Francis Boyd Prior, Crossley, McIntosh & Prior, Wilmington, N.C., argued (Sharon J. Stovall, Crossley, McIntosh & Prior, Wilmington, N.C., Margaret Person Currin, U.S. Atty., and Steven A. West, Asst. U.S. Atty., Raleigh, N.C., on brief), for defendants-appellees.
Before SPROUSE and WILKINSON, Circuit Judges, and COPENHAVER, District Judge for the Southern District of West Virginia, sitting by designation.
COPENHAVER, District Judge:
Edwin S. Leland (“Leland”) appeals from the district court’s grant of summary judgment in favor of the Federal Insurance Administrator (“FIA”) and the United States Automobile Association (“USAA”), asserting that he is entitled to summary judgment on his claim for benefits under the 1988 Upton-Jones amendment to the National Flood Insurance Act, 42 U.S.C. § 4013(c) (the “amendment”). The district court denied summary judgment to Leland and granted summary judgment to the defendants, holding that Leland’s losses occurred prior to the effective date of the Upton-Jones amendment and that the amendment did not apply retroactively to cover his losses. We agree and affirm the judgment of the district court.
I.
Appellant Leland is the owner of a beachfront residence at Topsail Beach, North Carolina. In March, 1985, defendant USAA issued to Leland a standard flood insurance policy (“SFIP”) on his Topsail Beach property pursuant to the National Flood Insurance Program (“NFIP”). Defendant Federal Insurance Administrator (“FIÁ”) is the official in the Federal Emergency Management Agency (“FEMA”) who administers the NFIP.
The policy issued to Leland in 1985 was a single peril policy designed to protect homeowners living in coastal areas from certain enumerated losses due to flooding. The policy, as issued, provided coverage only for “direct physical loss by or from a flood.” See 44 C.F.R. Part 61, App. A(l), Art. III. There is no dispute between the parties to this action that the policy as issued in 1985 did not afford coverage, as sought by the plaintiff, for the physical relocation of an insured dwelling which had sustained structural damage due to flooding.
Severe winter storms battered coastal North Carolina, including the Topsail Beach area, in December, 1986, and in January and February, 1987. Leland contends that the high -winds, waves and tides during those storms resulted in conditions of flooding as defined by the flood insurance policy issued to him. He further contends that, as a result of each of the floods in December, 1986, and January and February, 1987, he sustained substantial damage to the heating, electrical and septic systems, and to the foundation, pilings and deck of his residence.
On or about March 17, 1987, Leland was advised in writing by Topsail Beach officials that, because of the damage to his residence from the severe winter storms and the underwashing and erosion of the land underlying the property, the residence was unfit for human habitation and, further, that condemnation proceedings were being initiated. Subsequently, in November, 1987, Leland was warned by city officials that the residence was in danger of imminent collapse.
In light of these warnings and fearful of imminent collapse, Leland relocated his residence to a lot which he owned across the street and which was further removed from the beachfront. The relocation commenced on November 16, 1987. Although physical movement of the dwelling was completed in November, 1987, the residence was not ready for occupancy until the septic tank was installed and approved on February 8, 1988.
After relocation of his residence, Leland submitted a claim for relocation costs of approximately $25,000 to FEMA. The claim was denied on the ground that relocation of the dwelling was not compensable under the standard flood insurance policy held by Leland at the time of loss. Denial of the claim was also predicated upon FEMA’s contention that the February 5, 1988, amendment to the SFIP which provides benefits for structural relocation of flood-damaged structures was not retroactive and would not afford coverage for relocations occurring prior to its enactment.
After denial of his claim for relocation expenses, Leland filed this action against the Federal Insurance Administrator and, subsequently, against USAA.
II.
Inasmuch as the flood insurance policy issued to Leland in 1985 and in effect at the time his residence was relocated in November, 1987, provided coverage only for “direct physical loss by or from a flood,” both the insurance administrator at the claims level, and the district court in the proceedings below, determined that the relocation of Leland’s residence was not a covered loss under the policy provisions in effect at the time of the relocation in November, 1987. Leland does not contest the district court’s ruling in this regard.
Leland asserts, however, that the Upton-Jones amendment to the National Flood Insurance Act, which was enacted and became effective on February 5,1988, affords him coverage under the Act for expenses incident to the relocation of his residence. He contends that the district court erred in its decision that the Upton-Jones amendment is not retroactive in application and in its determination that his loss occurred pri- or to the amendment’s effective date of February 5, 1988.
III.
The Upton-Jones amendment to the National Flood Insurance Act, 42 U.S.C. § 4013(c), was enacted in order to provide coverage under the National Flood Insurance Act for the relocation or demolition of flood-damaged structures determined to be subject to imminent collapse. The amendment states in pertinent part:
(1) If any structure covered by a contract for flood insurance under this sub-chapter and located on land that is along the shore of a lake or other body of water is certified by an appropriate State or local land use authority to be subject to imminent collapse or subsidence as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels, the Director shall (following final determination by the Director that the claim is in compliance with regulations developed pursuant to paragraph 6(A)) pay amounts under such flood insurance contract for proper demolition or relocation.
42 U.S.C. § 4013(c)(1) (1988).
No reported cases specifically address whether enactment of § 4013(c) should be given retroactive effect, nor does the amendment itself expressly provide for retroactive application. It is a fundamental and well established principle of law, however, that statutes are presumed to operate prospectively unless retroactive application appears from the plain language of the legislation. See, e.g., Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988); Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1559, 84 L.Ed.2d 572 (1985); United States v. Magnolia Petroleum, 276 U.S. 160,162-63, 48 S.Ct. 236, 237, 72 L.Ed. 509 (1928).
In light of this well established principle of statutory construction, Leland argues that subparagraph (4)(A) of § 4013(c), which states that “[t]he provisions of this subsection shall apply to contracts for flood insurance under this title that are in effect on, or entered into after, February 5, 1988,” warrants retroactive application of the amendment. The district court correctly noted, however, that subparagraph (4)(A) merely provides for application of the amendment to those standard flood policies which were in effect on the date of the amendment’s enactment on February 5, 1988, and to those issued thereafter, without the necessity of amending such policies to reflect the new statutory coverage. Absent such a provision, it would have been necessary for FEMA to attach riders or endorsements to policies issued prior to incorporation of the new amendment into the standard flood insurance policy in order for policy holders to benefit prospectively from the amendment.
Support for the district court’s interpretation of subsection (4)(A) of § 4013(c) is found within the liberalization clause of the standard flood insurance policy which was issued to Leland and which was in effect at the time of the relocation of his residence. The liberalization clause provides:
While this policy is in force, should we have adopted any forms, endorsements, rules or regulations by which this policy could be broadened or extended for your benefit by endorsement or substitution of policy form, then, such matters shall be considered to be incorporated in this policy without additional premium charge and shall inure to your benefit as though such endorsement or substitution has been made.
44 C.F.R. Part 61, App. (A)(1), Art. IX (1988).
Other courts which have considered the effect of the liberalization clause in standard flood insurance policies have held that, rather than providing for retroactive application of amendments to FEMA, the clause is designed to foster administrative convenience and efficiency. As the Eighth Circuit recently held in Criger v. Becton:
We are convinced the SFIP liberalization clause was intended merely to give the insured the benefit of favorable changes made by FEMA during the policy term. The clause fosters administrative efficiency by allowing FEMA to give an insured the benefit of an amendment without requiring each SFIP to be rewritten or endorsed every time FEMA makes a change. The liberalization provision does not give retroactive effect to new SFIP terms; rather, it serves as a device for automatically reading into existing policies beneficial changes as soon as FEMA makes them and declares them to be in force.
902 F.2d 1348, 1352 (8th Cir.1990).
In Bowen v. Georgetown University Hospital, the Supreme Court recently reaffirmed the longstanding principles relative to the retroactive application of statutory enactments and administrative rule-making and held that, even where some substantial justification for retroactivity is presented, courts should be reluctant to find such authority absent an express statutory grant. 488 U.S. 204, 208-09, 109 S.Ct. 468, 471-72, 102 L.Ed.2d 493 (1988). The Bowen Court held: “[rjetroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. at 208, 109 S.Ct. at 471, citing Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964); Claridge Apartments Co. v. Comm’r, 323 U.S. 141, 164, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944); Miller v. United States, 294 U.S. 435, 439, 55 S.Ct. 440, 441, 79 L.Ed. 977 (1935); United States v. Magnolia Petroleum Co., 276 U.S. 160, 162-63, 48 S.Ct. 236, 237, 72 L.Ed. 509 (1928).
The Bowen decision and the principles articulated there have been cited and relied upon recently by other circuits in cases arising under the National Flood Insurance Act. See Criger v. Becton, 902 F.2d 1348 (8th Cir.1990); Wright v. Director, Federal Emergency Management Agency, 913 F.2d 1566 (11th Cir.1990). These cases have consistently recognized that, in accordance with Supreme Court precedent, statutory enactments or amendments “are not to be given retroactive effect or construed to change the status of claims fixed in accordance with earlier provisions unless the legislative purpose so to do plainly appears.” Criger, 902 F.2d at 1354; Wright, 913 F.2d at 1574, citing United States v. Magnolia Petroleum, 276 U.S. at 162-63, 48 S.Ct. at 237.
As in both the Criger and Wright cases which determined that other recent amendments to the National Flood Insurance Act should not be applied retroactively, the status of Leland’s claim in the present case was “fixed” at the time he chose to relocate his home by policy provisions then in effect. Moreover, like the amendments at issue in Criger and Wright, an intent for retroactive application of the amendment at issue is discernable from neither the language of the amendment itself nor from any other indication of congressional intent.
For these reasons, the district court properly ruled that the Upton-Jones amendment to the National Flood Insurance Act, 42 U.S.C. § 4013(c), did not apply retroactively to cover the costs incurred by Leland in the relocation of his residence.
IV.
Leland also asserts that, even if the amendment does not apply retroactively, the amendment nonetheless affords coverage for his claim for relocation expenses. He contends that his “loss,” assertedly the relocation of his residence, was not complete until February 8, 1988, three days after the effective date of the amendment, when the septic tank at the relocated residence was completed and the dwelling approved for occupancy. Arguing that the amendment does not specify what event triggers coverage and that his “loss” did not occur until after February 5, 1988, Leland asserts that he should be given the benefit of coverage under the amendment by virtue of “general principles of federal law.”
Federal common law controls the interpretation of insurance policies issued pursuant to the National Flood Insurance Program. (NFIP). See, e.g., Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987). In considering coverage questions arising under the NFIP, federal courts have recognized that, because potential exposure to claims and premium rates are estimated by FEMA in accordance with standard insurance practices, “Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks.” Drewett v. Aetna Cas. & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976); Sodowski, 834 F.2d at 655.
The standard flood insurance policy at issue in this case contains an exclusionary clause commonly referred to in the insurance industry as a “loss-in-progress” provision. That clause expressly states:
We only provide coverage for direct physical loss by or from flood which means we do not cover:
B. Losses of the following nature:
1. A loss which is already in progress as of 12:01 A.M. of the first day of the policy term, or as to any increase in the limits of coverage which is requested by you, a loss which is already in progress when you request the additional coverage.
44 C.F.R., Pt. 61, Art. Ill (1987).
It is thus seen from the provisions of Leland’s own policy that prospective changes in policy coverage are not intended to encompass losses already in progress at the time such changes in coverage are implemented. Such a result is consistent with the decisions of federal courts which have uniformly held that the “loss-in-progress” principle of standard insurance law applies to policies issued pursuant to the Act, and thus have denied coverage for flooding commencing prior to the effective date of a policy but not resulting in loss until after the effective date. See, e.g., Presley v. National Flood Insurers Assoc., 399 F.Supp. 1242, 1245 (E.D.Mo.1975); Mason Drug Co. v. Harris, 597 F.2d 886, 887-88 (5th Cir.1979); Summers v. Harris, 573 F.2d 869 (5th Cir.1978); Drewett, 539 F.2d at 498. Even in the absence of a “loss-in-progress” policy exclusion, federal courts have denied coverage for losses due to flooding which occurred prior to the effective date of a policy issued pursuant to the National Flood Insurance Program. See, e.g., Drewett, 539 F.2d 496; Summers, 573 F.2d 869.
In Drewett v. Aetna Cas. & Sur., an insured applied for and was issued a flood policy pursuant to the National Flood Insurance Program to cover his “camp house.” Prior to and on the date the policy was issued, flood waters had risen three to four feet up the stilts which supported the structure. 539 F.2d at 497. Three days after issuance of the policy, a levee which surrounded the property broke, allowing flood waters to enter the living quarters of the structure. Coverage was denied for the flood damage done to the residence on the basis of the “loss-in-progress” principle, with the Fifth Circuit noting:
[Although the [Flood Insurance] Program offers subsidized flood insurance, it is designed to operate much like any private insurance company.... Because the Program’s exposure to claims and its premiums are required to be estimated in accordance with standard insurance practices, and because private insurers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks. Nothing in the statute or regulations promulgated under it requires otherwise....
[T]he district court held that the “loss-in-progress” principle applies to policies issued under the Program, rejecting the same arguments made by Drewett here. This plainly is the correct conclusion. We affirm.
539 F.2d at 497-98 (citations omitted). See generally, Annotation, National Flood Insurance Risks and Coverage, 81 A.L.R. Fed. 416, 421, 434-35 (1987).
Although the “loss-in-progress” principle has been applied in cases such as Drewett, Presley, Summers and Mason to flood insurance coverage disputes which arose after the issuance of new policies of flood insurance rather than after the expansion of benefits pursuant to a statutory amendment, the rationale underlying the rule, namely, prevention of unfair allocation of loss to the insurer whether through fraud or innocent mistake, logically applies in the statutory amendment context as well. To hold otherwise, and to adopt Leland’s position that coverage exists merely because incidental repairs were made after the amendment’s effective date, would allow an insured to defer making such repairs to a flood-damaged structure in a purposeful effort to delay his “loss” until after enactment of future beneficial amendatory changes.
Application of the loss-in-progress principle to the facts of this case renders it apparent that there can be no coverage for Leland’s claim on the theory that his loss did not occur until February 8, 1988, when the septic system at the relocated residence was installed and approved. Indeed, there is no dispute that the storms which damaged the Leland residence and which necessitated relocation of the structure and the consequent replacement of the septic system, occurred in December, 1986, and in January and February, 1987. By November, 1987, nearly three months prior to the amendment’s effective date, a new site had been prepared and physical relocation of the structure to its new location had been completed.
Although installation and approval of the septic system was surely a necessary incident to the physical relocation and reinhabi-tation of Leland’s residence, it cannot be viewed in isolation from the other chain of events, particularly the flooding allegedly producing the damage in question, which occurred well prior to the amendment’s effective date of February 5, 1988. To the extent that installation of the septic system is a compensable loss under the amendment at issue, which we need not decide here, such loss was already in progress on the amendment’s effective date and does not furnish a basis for coverage of Leland’s claim.
V.
Accordingly, we agree with the decision of the district court granting summary judgment to the defendants and its judgment is hereby affirmed.
AFFIRMED.
. "Direct physical loss by or from a flood” is defined in the standard flood insurance policy as "any loss in the nature of actual loss of or physical damage evidenced by physical changes to the insured property (building or contents ...) which is directly and proximately caused by a 'flood'_” 24 C.F.R. Part 61, App. A(l), Art. II.
. "Flood” is defined in the standard flood policy as follows:
Wherever in this policy the term "flood” occurs, it shall be held to mean
A. A general and temporary condition of partial or complete inundation of normally dry land areas from:
1. The overflow of inland or tidal water.
2. The unusual and rapid accumulation or runoff of surface waters from any source.
3. Mudslides (i.e. mudflows) which are proximately caused by flooding as defined in paragraph A-2 of this article and are akin to a river of liquid and flowing mud on-the surfaces of normally dry land areas, including your premises, as when earth is carried by a current of water and deposited along the path of the current.
B. The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding the cyclical levels which result in flooding as defined in A-l above.
44 C.F.R. Part 61, App. A(l), Art. II (1987).
. The Administrator also determined that, even if the amendment were retroactive in operation, there would be no coverage for Leland’s loss inasmuch as the property had not been condemned by the local land use authority. The administrator also noted that the residence had been voluntarily moved despite no state or local condemnation action having taken place. In view of the disposition of other issues on this appeal, it becomes unnecessary to address either of these contentions.
. Whether coverage under the standard flood insurance policy for the structural damage done to Leland's residence would have existed but for the relocation is not before the court and we do not undertake to pass upon that issue here.
. The amendment at issue derived from the Housing and Community Development Act of 1987, Pub.L. No. 100-242, § 544(b), 101 Stat. 1972 (Feb. 5, 1988). Section 544(b) provides that "[T]he amendment made by this section shall become effective on the date of enactment of this Act.” Id.
. The amendment further provides:
(2) If any structure subject to a final determination under paragraph (1) collapses or subsides before the owner demolishes or relocates the structure and the Director determines that the owner has failed to take reasonable and prudent action to demolish or relocate the structure, the Director shall not pay more than the amount provided [by the mathematical formula set forth] in subpara-graph (A)(i) with respect to the structure.
(4)(A) The provisions of this subsection shall apply to contracts for flood insurance under this title that are in effect on, or entered into after, February 5, 1988.
(B) The provisions of this subsection shall not apply to any structure not subject to a contract for flood insurance under this title on the date of a certification under paragraph (1).
(C) The provisions of this subsection shall not apply to any structure unless the structure is covered by a contract for flood insurance under this subchapter—
(i) on or before June 1, 1988;
(ii) for a period of two years prior to certification under paragraph (1); or
(iii) for the term of ownership if less than two years.
(6)(A) The Director shall promulgate regulations and guidelines to implement the provisions of this subsection.
(B) Prior to the issuance of regulations regarding the State and local certifications pursuant to paragraph (1), all provisions of this subsection shall apply to any structure which is determined by the Director—
(i) to otherwise meet the requirements of this subsection; and
(ii) to have been condemned by a State or local authority and to be subject to imminent collapse or subsidence as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels.
42 U.S.C. § 4013(c) (1988).
. Although Leland has not so argued, some litigants seeking retroactive application of other amendments to FEMA have asserted, unsuccessfully, that retroactivity is warranted under the principles set forth in the earlier Supreme Court decision of Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). See, e.g., Wright v. Director, Federal Emergency Management Agency, 913 F.2d 1566, 1572-74.
In Bradley, the Court held that a statutory provision for attorneys' fees should be retroactively applied to a fee request pending when the statute was enacted. Bradley premised its holding upon the principle that a court must apply the law in effect at the time it renders its decision, absent manifest injustice, statutory direction or legislative history to the contrary. 416 U.S. at 715, 94 S.Ct. at 2018.
Even under the Bradley approach, however, retroactivity is not warranted in the present case inasmuch as application of the amendment would result in manifest injustice by distorting the rights of the respective parties already fixed by the policy provisions in effect prior to February 5, 1988.
. In Wright, the Eleventh Circuit noted:
Wright entered into a contractual relationship with FEMA when he signed consecutive insurance policies under the Program. The policies were for fixed terms, and Wright was obligated to pay a yearly premium. Each party was bound to comply with the explicit terms of the policies. Based on the terms of the policy, the federal government established premium rates, estimated the cost of the program, and determined its contours of liability. It acted, like a private insurance company, according to the terms of the contracts entered into in 1985 and 1986.... [S]uch a relationship created unconditional and matured rights upon which the parties relied. Retroactive application of the October Amendment would deny both the federal agency and Program participants "fixed, predictable standards for determining if expenditures are proper.” Further ... there are comparable "practical considerations related to the administration of’ an insurance program ... which necessitate obligations being generally determined by the policy terms in effect at the time Wright was actively insured under a SFIP.
913 F.2d at 1574 (emphasis in original) (citations and footnotes omitted).
. Consistent with general principles of insurance law, federal courts have recognized that, if the language of an insurance policy is reasonably open to alternative constructions, the one more favorable to the insured should be adopted. See, e.g., Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 84-85, 54 S.Ct. 590, 592-593, 78 L.Ed. 1137 (1934).
. In Presley, the court noted that the "loss-in-progress” principle has developed as a matter of public policy and has, as a fundamental purpose, prevention of the perpetration of fraud in the acquisition of insurance contracts. 399 F.Supp. at 1244-45.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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songer_origin
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D
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the 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.
In re POWER ENGINEERING CO. CHATHAM BANK OF CHICAGO v. CHATZ.
No. 9784.
United States Court of Appeals Seventh Circuit.
Oct. 13, 1949.
Arthur Abraham, Louis B. Getz, Chicago, Ill., for appellant.
William S. Collen, Joseph L. ICadison, Chicago, Ill., Lawrence E. Lewy, Chicago, Ill., of counsel, Attorney for John H. Chatz, Receiver-Trustee for Power Engineering Co., Bankrupt, Appellee.
Lee Walker, Stephen R. Chummers, Chicago, Ill., Attorneys for Reconstruction Finance Corporation as Amicus Curiae.
•Before MAJOR, Chief Judge, FINNEGAN, Circuit Judge and LINDLEY, District Judge.
MAJOR, Chief Judge.
This cause arises from the filing of a Reclamation Petition by the-Chatham Bank of Chicago in the bankruptcy proceedings of Power Engineering Company, praying for an order directing John H. Chatz, the Receiver, to surrender and turn over to the bank certain described machinery and equipment of which the bank claimed to be the owner by virtue of a Bill of Sale and a Conditional Sales Contract. Answers to the bank’s petition were filed by the Receiver and also by the bankrupt, alleging that the Bill of Sale and the Conditional Sales Agreement upon which the bank relied were void for failure to comply with the Illinois Bulk Sales Law, Ill.Rev.Stat.1947, c. 1211/2, § 78 et seq., and were fraudulent as to the Receiver and the creditors of the bankrupt. After hearing, the Referee entered an order sustaining the petition and directing that the chattels involved be turned over to the bank. Upon the Receiver’s petition for review of the Referee’s order, the District Court sustained the petition, entered an 'order vacating the order of the Referee and denying the petition of the bank. It is from this order that the appeal comes to this court.
On October 9, 1946, the bank loaned the Power Engineering Cqmpany the sum of $25,000, and three instruments were simultaneously executed between the parties : (1) a Bill of Sale by Power Engineering Company to the bank, purporting to convey certain machinery and other equipment therein described; (2) .a Conditional Sales Contract, whereby the bank purported to sell to Power Engineering Company the same machinery and equipment for the sum of $25,000 and interest, and (3) a loan agreement, under the terms of which it was provided : (a) Power Engineering Company was to deposit with the bank all its outstanding stock; (b) Power Engineering Company agreed “to constitute one J. W. Hutcherson, Comptroller and Office Manager of said corporation empowering him as such Comptroller to countersign any and all documents, contracts, agreements, checks or other writings” and “to amend its ByLaws providing for such authority”; (c) Power Engineering Company further agreed “to obtain a Fidelity Bond for said Comptroller payable to the Bank. The premium for said bond and the salary of said Comptroller shall be borne by the corporation”; (d) Power Engineering Company further agreed that “it will permit Henry J. Rossbach, a certified Public Accountant, to supervise, audit and examine any and all records of said corporation and to report his findings to the Bank. That said Henry J. Rossbach shall have the right to do any and all the acts above provided weekly, or oftener, if, in the opinion of the Bank, said action is necessary. The cost for the services of said Henry J. Rossbach shall be borne by the Corporation” (Rossbach was a director of the bank) ; and (e) it was also agreed that the corporation was to turn over to the bank all monies and invoices of sales made by it and that such monies and invoices received by the bank were to be disbursed as follows: 50% to be applied by the bank toward the retirement of the loan made by the bank to the corporation, 35% to be deposited to the credit of the Power Engineering Company, against which it was authorized to draw in order to carry on its business, meet its payroll and other operating expenses, and the remaining 15% to be held by the bank as additional security for the $25,000 loan.
None of the instruments referred to were filed for record under the Illinois Chattel Mortgage Act, Ill.Rev.Stats.1947, Chap. 95, Secs. 1 and 4, or otherwise, except the Conditional Sales Contract, which was filed for record March 25, 1947. It is not claimed that this recordation is of any benefit to the bank in the present litigation.
In spite of the numerous conflicting claims advanced here, two salient propositions emerge, both of which are conceded, or at any rate are not in dispute: (1) that the instruments executed between the parties had the effect of a chattel mortgage, and (2) such instruments were not filed for recording within the terms of Sec. 4 of the Chattel Mortgage Act. The bank, somewhat at variance with the issues created by the pleadings and advanced in the court below, contends that it is entitled to prevail under Sec. 1 of said Act because at the time of the execution of the instruments possession of the chattels was delivered to and remained with it. It appears, therefore, that unless the bank maintains the affirmative on this issue it cannot prevail on this appeal. And a decision adverse to the bank on this issue will obviate any occasion to discuss or consider other issues raised here or considered in the court below.
The Referee made findings of fact upon which its order favorable to the bank was predicated, and included therein was a finding that the bank did on October 9, 1946 take possession of the chattels described in the Bill of Sale and Conditional Sales Contract. There may be some doubt as to the weight which we should attach to this finding, inasmuch as the order of the Referee was set aside by the District Court; but it is fair to state that the court in its memorandum opinion did not specifically affirm or disaffirm the finding. For the purpose of this decision, however, we assume that this finding as to possession of the chattels should not be set aside unless clearly erroneous, as required by Rule 52(a) of the Rules of Civil Procedure, 28 US.C.A.
As bearing upon this issue, the only evidence other than the documents is that of Mr. Pernet, president of Power Engineering Company, and Mr. Riley, president of the bank. The loan was negotiated by these two persons. Pernet’s testimony is that Riley proposed to him that a chattel mortgage be executed to secure the loan, but that he, Pernet, objected because of the publicity and consequent injury to their credit. Per-net further testified that he informed Riley that they could have obtained all the money they wanted if they had been willing to make a chattel mortgage. In response, Riley stated “that he was going to see if they can fix it up some other way * * * if they can make it some other way which is just as secure without putting it in the papers.” Thus, it appears that the parties had an understanding that the recording provision of the Chattel Mortgage Act was to be avoided so that knowledge of the transaction would not be acquired by third persons.
The documentary evidence, in our judgment, is equally impotent as the basis for a finding that the bank acquired possession. As already noted, the Bill of Sale, Conditional Sales Contract and loan agreement were executed simultaneously. They were prepared by the bank. True, the Bill of Sale recites that the chattels were sold and delivered to the bank, but by the terms of the Conditional Sales Agreement the same chattels were immediately sold on condition and “delivered” by the bank to the Power Engineering Company. This contract expressly provided that “delivery and acceptance” of the chattels thereafter described “is hereby acknowledged by the Power Engineering Company.” The contract also contained a provision that in the "event of default in the terms thereof, the bank would have the right “to take immediate possession of said property,” and “for this purpose” to “enter upon the premises where said property may be and remove the same.” How the bank can logically contend that it acquired and retained possession of the chattels in view of these express provisions of the contract is not apparent to us. More than that, counsel for the bank at the hearing before the Referee attempted to prove that “in the latter part of May 1947” the bank threatened “to take possession of the chattels.” If the bank acquired possession on October 9, 1946, as it now asserts, it is difficult to discern the reason for its threat to take possession in May, 1947.
Much is said, however, concerning the provisions of the loan agreement. It is significant to note that this instrument prepared by the bank made no express provision for possession of the chattels by the bank. We have heretofore set forth the main provisions of this agreement and need not repeat. Just how or in what manner the provisions for delivery of the debtor’s corporate stock to the bank, or the resignation of the debtor’s officers and directors (no evidence that such were acted upon or accepted), or the provision by which the bank was given certain designated control over the debtor’s income and expenditures, are any evidence of the bank’s possession of the chattels is not discernible. Especially is this so in view of the express provision of the Conditional Sales Contract which lodged possession with the debtor. Another point inimical to the bank’s contention is, as already noted, the secret nature of the transaction between the parties.
There is no evidence that the bank placed any of its representatives in the position of officers of the debtor company. The proof does show that the same management was in authority and control after the loan as prior thereto.. Pernet testified that he ran the business before the loan and after the loan. This point is emphasized in the bank’s brief, which states, “If Pernet, the President and guiding spirit of Power Engineering Co., had been an honest man and had kept his agreement, no loss would have been suffered by any creditor.” Neither is there any substance to the bank’s claim to possession based upon its designation of Rossbach, auditor of Power Engineering Company, and Hutcherson, its bookkeeper, as the bank’s “representatives”. Both of these men performed their duties at the office of the debtor located at 361 East Ohio Street, while the location of the chattels of which the bank claims possession was at 2112 Southport Avenue, many miles from the office of the debtor. One of these men never visited the plant where the chattels were located and the other was there on two occasions to deliver payrolls. They were at all times paid by the debtor and worked under the supervision and direction of Per-net, the debtor’s president.
Many Illinois cases are cited as to what constitutes possession by a mortgagee so as to obviate compliance with the recording provision of the Chattel Mortgage Act. No good purpose could be served and it would unduly prolong this opinion to cite, much less discuss, such cases. It is evident from a reading of these cases that each is dependent upon its own particular facts. There is no case called to our attention which sustains the bank’s contention in the instant matter. The case in which the bank professes to find its strongest support is Martin v. Sexton, 112 Ill.App. 199. There, the lender specifically designated an agent to take physical possession and control and to operate the business and the premises on which it was conducted. The agent thereupon assumed actual control of the business, reorganized the restaurant part in which the mortgaged chattels were located, and was instructed by the lender to report to him, take charge of the cash, pay the bills and deposit the proceeds in the bank to the lender’s credit. These orders of the lender were complied with, with the consent and approval of the debtor. More than that, the lender visited the store every day, consulted with his agent on the premises where the business was located, looked over the accounts and gave directions concerning the business. In addition, the third party who was contesting the lien asserted by the lender had actual knowledge of the facts as above stated. Under these circumstances, the court held that the lender had possession of the chattels and therefore a prior lien, particularly as to the third party who had actual notice.
The facts in the case just noted are a far cry from those of the instant case where creditors of the debtor and third parties had no notice, either actual or constructive, that possession of the debtor’s chattels was in the bank. In our view, the bank’s present contention in this respect was an afterthought born to meet the exigencies of the situation with which it was confronted when the debtor became a bankrupt. We conclude that the finding of the Referee that the bank on October 9, 1946 took possession of the chattels in controversy was clearly erroneous.
It follows from what we have said that the bank’s petition for reclamation of such chattels was properly denied by the court below. The order appealed from is, therefore,
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_trialpro
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Cathleen GEEHAN, Plaintiff-Appellee, v. Richard S. MONAHAN, Defendant-Appellant.
No. 15950.
United States Court of Appeals Seventh Circuit.
July 6, 1967.
Suel O. Arnold, Milwaukee, Wis., Arnold, Murray & O’Neill, Milwaukee, Wis., of counsel, for appellant.
Charles M. Hanratty, Irving D. Gaines, Milwaukee, Wis., David A. Saichek, Milwaukee, Wis., of counsel, for appellee.
Before SCHNACKENBERG, CASTLE and FAIRCHILD, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Richard S. Monahan, defendant, has appealed from a judgment of the United States District Court for the Eastern District of Wisconsin entered April 21, 1966, against him and in favor of Cathleen Geehan, plaintiff, for $46,237.66 and costs, based on a jury verdict.
Plaintiff originally filed her complaint in the District Court of the United States for the Eastern District of Virginia, but, when defendant’s answer denied an allegation of the complaint that she was a resident and citizen of Virginia and stated that she was a resident and citizen of Wisconsin, the Virginia federal court entered an order on September 10, 1963, which read:
Upon consideration of the pleadings in the above-styled matter, and after hearing counsel, it appearing to the Court that the plaintiff did not establish such residence under Title 28, United States Code, § 1391(a), as to permit her to bring suit in this District; and
It further appearing to the Court that counsel, in view of the foregoing, have agreed that the action he transferred to the United States District Court for the Eastern District of Wisconsin, Milwaukee Division; it is [italics supplied]
ORDERED that Civil Action No. 2933 be, and it hereby is, transferred to the United States District Court for the Eastern District of Wisconsin, Milwaukee Division, for such further proceedings as that court deems proper. Title 28, United States Code, § 1404(a).
The Clerk is directed to mail certified copies hereof to the plaintiff and the defendant, and shall forthwith mail all of the files in Civil Action No. 2933 to the Clerk of the United States District Court for the Eastern District of Wisconsin, Milwaukee Division.
September 10,1963
/s/ Oren R. Lewis
United States District Judge
A copy of the foregoing order was filed in the Wisconsin court on September 12, 1963, and is a part of the record on appeal herein.
1. In this appeal defendant contends that the trial court in Wisconsin did not have jurisdiction over the subject matter of the action. He cites the facts that plaintiff originally alleged in her complaint, which she filed in the federal court in Virginia, that she was a citizen of that state and that defendant was a citizen of the District of Columbia, and that defendant denied plaintiff’s allegation as to his citizenship but alleged that he was a citizen of the state of New York, living in a student’s dormitory in the District of Columbia.
While defendant moved in the district court in Wisconsin to retransfer the case to the Virginia federal court, which motion was denied, that action was consistent with the view which we take of the validity of the order of the Virginia federal court above-quoted. While the order refers to 28 U.S.C. § 1404(a), which reads,
(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought,
it is sustainable only under § 1406(a), which provides:
(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have have been brought.
The mere fact that the court cited an irrelevant section of an act rather than a relevant one is no basis for invalidating its action.
Neither party to an action can be heard to impugn an order to which that party agreed at the time of its entry. Such was the order of September 10, 1963, which expressly recites that “counsel * * * have agreed that the action be transferred,” to the federal court in Wisconsin. We hold that it is a general rule that an agreed order is impregnable to attack by either side. No reason has been presented to exempt this order from the general rule.
By her second amended complaint dated June 14, 1965, plaintiff clearly asserted citizenship in Wisconsin and that of defendant in New York.
2. At the beginning of the trial on April 18, 1966, in the federal court in Milwaukee, Wisconsin, the court ruled that “Wisconsin substantive law will apply.” However defendant urges that the law of Virginia in that respect applied, citing, inter alia, Van Dusen v. Barrack, 376 U.S. 612, 642, 84 S.Ct. 805, 822, 11 L.Ed.2d 945 (1964):
“Since in this case the transferee district court must under § 1404(a) apply the laws of the State of the transferor district court, it follows in our view that Rule 17(b) must be interpreted similarly so that the capacity to sue will also be governed by the laws of the transferor State. * * *”
and, at 643, 84 S.Ct. at 823, the Supreme Court said:
“The holding that a § 1404(a) transfer would not alter the state law to be applied does not dispose of the question of whether the proposed transfer can be justified when measured against the relevant criteria of convenience and fairness. * * * ”
Having in mind our comment that, in making the transfer, the Virginia federal district court improperly cited § 1404(a), when § 1406(a) was applicable, we consider as inapplicable to the case at bar the statements in Van Dusen, quoted above, and also at 639, 84 S.Ct. at 821, which reads:
“ * * * change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms.”
and, at 646, 84 S.Ct. at 824, the following:
“ * * * We have concluded, however, that the District Court ignored certain considerations which might well have been more clearly appraised and might have been considered controlling had not that court assumed that even after transfer to Massachusetts the transferee District Court would be free to decide that the law of its State might apply. * * * ”
In other words, Van Dusen recognized that, under a § 1404(a) transfer, the law of the transferring jurisdiction follows the case.
3. Under the Erie Railroad v. Tompkins doctrine, the district court herein, having accepted the law of Wisconsin as applicable to this case, was guided as to Wisconsin policy in a conflict of laws situation (Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)), by the case of Wilcox v. Wilcox, 26 Wis.2d 617, 634, 133 N.W.2d 408, 416 (1965). In Wilcox, plaintiffs, husband and wife, Wisconsin residents, were involved in an automobile accident in Nebraska, while the husband was driving. The wife, who sued her husband, was a passenger. The suit was brought in Wisconsin and the husband’s liability insurer was named as a co-defendant. Because the complaint alleged only ordinary negligence, the trial court, following the law of Nebraska, sustained a demurrer to the complaint. The guest statute of Nebraska allows recovery from a host by a guest only if gross negligence or intoxication of the host is pleaded and proved. But the complaint alleged that both plaintiff and defendant were domiciled in Wisconsin and that their insurance carrier was organized, licensed and domiciled in that state and that the policy on the car was issued and delivered in Wisconsin to afford coverage on Wilcox’s automobile, which was usually kept in Wisconsin. The accident occurred when the Wilcoxes were returning to Wisconsin from a vacation.
The trial judge sustained the demurrer under the existing rule that the place of the tort is the law of the case irrespective of the forum, residence of the parties, or other factors.
However, on appeal, the Supreme Court of Wisconsin adopted a “grouping of contacts” rule for the choice of applicable law, and decided that Wisconsin host-guest law, under which a guest can recover for the host’s negligence, should be applied in an action for damages arising from an accident which occurred in Nebraska.
It is true that, in the Wilcox case, the parties had a greater number of significant contacts with Wisconsin than do the parties in the present case. The Wisconsin court did, however, state a general rule on page 634, on page 416 of 133 N.W.2d, as follows:
“ * * * We start with the premise that if the forum state is concerned it will not favor the application of a rule of law repugnant to its own policies, and that the law of the forum should presumptively apply unless it becomes clear that nonforum contacts are of the greater significance. * * * ”
In the case now before us Wisconsin is the forum state. It is concerned because the plaintiff is domiciled there. It is not clear that nonforum contacts, i. e. in New York or Virginia, are of greater significance with respect to the host-guest relationship. We, therefore, interpret Wilcox as requiring that Wisconsin host-guest law be applied in this case.
4. During the voir dire examination of veniremen, plaintiff’s attorney asked prospective jurors the following question:
“Now, members of the jury, if you are satisfied from the evidence, including the medical evidence, that will be introduced in this trial, that the plaintiff has sustained serious and permanent personal injuries, would you have any hesitancy of returning a verdict commensurate with the injuries you find she has, even though it might run many thousands of dollars ?”
Defense counsel objected upon the ground that the question improperly asked for a “pledge” from the jury, but was overruled by the court.
Such a question is generally permitted in the discretion of the court. We see no basis for the objection. See Murphy v. Lindahl, 24 Ill.App.2d 461, 165 N.E.2d 340, 82 A.L.R.2d 1410 (1960).
Moreover, defendant has not attempted to show any prejudice resulting from the asking of the foregoing question. Defendant makes no contention that the damages allowed by the jury are excessive.
5. When called adversely by the plaintiff as a witness, defendant testified he did not remember the actual collision as he was knocked unconscious as a result thereof. Defendant requested that the court instruct the jury that
“ * * * where a motorist receives injuries in an accident which result in amnesia as to the events leading up to the accident, the motorist is entitled to the benefit of the presumption that he exercised due care for his own safety until there is competent evidence to overcome that presumption.”
However, the court, over the objection of defendant, gave the jury a res ipsa loquitur instruction, which was repeated at the request of the jury. Under that instruction the jury was told:
“ * * * If you find that the defendant, Richard S. Monahan, had exclusive control of the Volkswagen automobile involved in the accident, and if you also find that his automobile invaded the opposite lane of traffic and that this invasion is the type or kind of invasion that ordinarily would not have occurred had defendant, Richard S. Monahan, exercised ordinary care, then you may infer from the occurrence itself and the surrounding circumstances that there was negligence on the part of the defendant unless the defendant has offered to you an explanation of the occurrence which is satisfactory to you.”
We hold that the district court properly refused the proffered instruction on retrograde amnesia and did not err in instructing the jury on res ipsa loquitur. In Brunette v. Dade, 25 Wis.2d 617, 131 N.W.2d 340 (1964), where plaintiff, driving a motorcycle, collided with defendant’s automobile, and the jury found plaintiff 60% negligent, the court, at 622, at 342 of 131 N.W.2d, citing an earlier case, said:
“ ‘This court is committed to the doctrine that where in a negligence case evidence is introduced which would support a jury finding contrary to the presumption that a deceased person or one who has suffered amnesia exercised due care for his own safety the presumption is eliminated and drops out of the case entirely and no instruction upon that subject should be given to the jury.’ ”
In Voigt v. Voigt, 22 Wis.2d 573, 126 N.W.2d 543 (1964), the court at 583, at 548 of 126 N.W.2d stated:
“Once testimony was received that Beaton’s car invaded the wrong lane of travel, there arose an inference of negligence which eliminated the presumption of due care.”
6. We find no error, as charged by defendant, in the trial court’s action in permitting plaintiff’s counsel to ask defense witness Larsen whether he had been reimbursed for his injuries.
For all of these reasons, the judgment from which this appeal was taken is affirmed.
Judgment affirmed.
. Title 28, U.S.C., Federal Rules of Civil Proo.edure, Rule 17 (b): (b) * * * The capacity of an individual, * * * to sue or be sued shall be determined by the law of his domicile.
. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938).
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
DU BOIS v. ZIMMERMAN et al.
Circuit Court of Appeals, Third Circuit.
September 20, 1928.
No. 3802.
James B. Avis, of Woodbury, N. J., for appellant.
Frank E. Paige, of Philadelphia, Pa., for appellees.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
WOOLLEY, Circuit Judge.
Josiah E. Du Bois engaged by written contract to sell and convey unto Alice G. Zimmerman and Ida Gleim a certain property situate in the city of Woodbury and state of New Jersey at an agreed valuation in consideration of one dollar and more particularly in consideration of the sale and conveyance by them unto him of certain properties in Florida at an agreed valuation, the women purchasers of the Woodbury property to give Du Bois a mortgage for a named sum secured thereby and free the Florida properties of existing liens and create against certain of them a new mortgage for a stated sum, failure on their part to create such mortgage or to perform any other term of the agreement worked its termination “at the option” of Du Bois. Disagreements followed, Du Bois rescinded the contract and Zimmerman and Gleim filed against Du Bois a bill for specific performance on which, after hearing, the District Court entered a decree that Du Bois specifically perform his part of the contract by conveying the Woodbury property unto the ven-dees. Du Bois appealed and has raised three questions:
The first, whether he was induced to execute the written agreement by fraudulent representations as to the value of the Florida properties, we resolve against him without reciting the supporting testimony; the second and third, whether the written contract can be modified or changed by antecedent, concurrent or subsequent oral agreements between the parties and proved by parol evidence and whether Du Bois had a right to rescind the contract by reason of Zimmerman’s and Glenn’s failure to create the new mortgage against the Florida properties and do other things required by its terms.
On the questions as framed the parties argued familiar law that all agreements reached in negotiations are presumed to be embodied in the writing into which they have subsequently entered and that understandings not embodied in the writing cannot be added to the agreement by parol evidence although admittedly the parties may, by mutual action and for sufficient consideration, modify its terms as often as they desire. Producers Coke Co. v. Hoover, 268 Pa. 104, 110 A. 733. But after a critical study of this record we are satisfied there are no such questions of law in the ease because the matters claimed as breaches of the contract or as improperly proved by parol had nothing to do with the main terms of the agreement affecting the trade. It had to do with preparing papers and creating the mortgage. These under the agreement were undertakings by Zimmerman and Gleim, but evidently they convinced the trial court and certainly they have convinced this court that Du Bois, who was a real estate broker, had, whether or not he was aware of the legal effeet, persuaded them to let him draw the papers and otherwise perform certain of their parts of the written contract, for which he charged them a fee of $270. Therefore we decide this appeal against Du Bois, not on the existence and admission in evidence of contemporaneous oral agreements, but on the ground that subsequently to the written agreement he persuaded the two women not to perform certain of their undertakings by promising that he would attend to them — for a consideration. In this way, unconsciously perhaps, he induced them to breach their contract. Clearly he cannot now take advantage of his own technical wrongdoing. In other words, he cannot take advantage of breaches by other parties which he himself brought about.
The deeree for specific performance 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_casetyp1_1-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America v. Charmaine Y. ZEIGLER, Appellant.
No. 91-3301.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 25, 1993.
Decided June 4, 1993.
Jonathan S. Zucker, Washington, DC (appointed by this court) argued the cause and filed the brief, for appellant.
Barbara K. Bracher, Asst. U.S. Atty., Washington, DC, argued the cause, for appel-lee. With her on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher and Thomas C. Black, Asst. U.S. Attys., Washington, DC.
Before: EDWARDS, D.H. GINSBURG, and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
This appeal from a criminal conviction raises an old problem. The government’s evidence falls short of proving guilt beyond a reasonable doubt. Nevertheless, the trial court denies the defendant’s motion for judgment of acquittal. The defense puts on its case and the defendant takes the stand. The jury then returns a verdict of guilty. Perhaps the defendant’s demeanor, itself evidence, caused the jury to infer that the truth was the opposite of what the defendant said. However, as Judge Learned Hand wrote in Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.1952), the demeanor evidence has “disappeared.” Should an appellate court nevertheless affirm on the supposition that the defendant’s demeanor filled the gap in the government’s proof; or should the court reverse because the record does not reveal sufficient evidence to support the conviction? We mentioned the issue in United States v. Jenkins, 928 F.2d 1175, 1178-79 (D.C.Cir.1991), but did not decide it.
I
Charmaine Y. Zeigler was tried before a jury for possessing with intent to distribute crack cocaine, 21 U.S.C. § 841(a) & (b)(l)(B)(iii); and for using and carrying firearms during and in relation to that offense, 18 U.S.C. § 924(c)(1). Her co-defendant, Devon A. Waite, faced these charges and the additional charge of knowingly receiving, possessing, and transporting firearms in interstate commerce after having been previously convicted of a felony. 18 U.S.C. § 922(g)(1).
The government’s evidence showed that police officers executing a search warrant forcibly entered an apartment at 11 Galveston Place, Southwest. The apartment, formerly two units side by side, occupied the top floor of a small two story building. Facing the front of the building, Waite’s bedroom had been the living room of apartment # 3, on the building’s left side. A rear door in this room led to a hallway. Directly across the hallway was a kitchen, in the far left rear of the apartment. Down the hallway and adjacent to the kitchen was a bedroom. Apartment #4, on the right side, had the same configuration, with a living room in the front; a laundry room (apparently a former kitchen) across the hallway in the right rear of the apartment; and an adjacent bedroom. The two apartments had been converted to one. The hallway in each, which separated the front rooms and the kitchen (or laundry room) and each apartment’s bedroom in the rear, now ran the entire width of the apartment.
After the officers entered, they found three people inside, each of whom they placed in custody. The officers spotted Waite crossing the hallway between his bedroom and the kitchen, on the left side of the apartment. They found Zeigler in Waite’s bedroom. A third individual, Angela Hicks, was in the bedroom of former apartment # 4, on the right side.
The search of Waite’s bedroom turned up a small bag of marijuana on the headboard of the bed; a Ruger .22 caliber semiautomatic pistol on the floor behind a chair; $254 in cash and a money order on the dresser; also on the dresser, an ammunition pouch containing two speed loaders each with six rounds of .38 caliber ammunition. In the trash can in the kitchen across from Waite’s bedroom was a loaded Sports Arms .38 caliber revolver.
Down the hallway, in the living room, the officers found $533 in cash under a seat cushion, a bag of marijuana, and 7 rounds of 9 millimeter ammunition in a teapot.
■ The door to the laundry room, in the right rear corner of the apartment opposite the living room, was locked with a hasp and a padlock. The officers ripped the lock from the door and entered. Inside was a washing machine and a maroon briefcase, locked with combination locks. The briefcase contained 5.5 grams of crack cocaine, a razor blade, a Walther PPK .38 caliber semiautomatic handgun, $740 in U.S. currency, and two money orders.
Apart from the clothes she was wearing and the bag of marijuana, the officers found no personal effects of Zeigler’s in the apartment — no documents, personal papers, bills, extra clothing, or the like.
While the search was underway, the officers moved Zeigler, Waite, and Hicks to a couch in the living room, and asked each of them their name and where they lived. Zeigler identified herself and said she lived at “11 Galveston Place, Southwest.”
After presenting this evidence, the government called Barbara Anderson, the owner of the apartment building. She testified that she rented the top floor of the building to Waite and collected the rent from him, either in cash or money orders. Anderson thought Zeigler “lived” there with Waite. She based this conclusion on her seven or eight visits to the building between the summer of 1990 and October 2, 1990, when the search took place. During these visits she saw Zeigler, although not each time. She also called Waite; Zeig-ler answered the telephone. On one occasion, Zeigler — in response to Anderson’s question about a crib standing just outside Waite’s bedroom — said she was pregnant. (The police did not find a crib in the apartment.) Anderson also believed that Waite had rented part of his apartment to another woman and that a George Pope also lived there for a time.
At the close of the government’s case, Zeigler (and Waite) moved, pursuant to Rule 29, Fed.R.Crim.P., for a judgment of acquittal. The district court summarily denied the motions.
Waite then put on his defense. He produced three witnesses to support his theory that the top floor apartment consisted of two distinct apartments, and that while the cocaine had been found in the right portion of the apartment, Waite exclusively occupied the left. Waite did not testify.
Zeigler took the stand in her defense. She admitted that the marijuana in Waite’s bedroom was hers. She said that Waite was her boyfriend; that she had “been staying [at his apartment] off and on for two or three months”; that she stayed only in the portion formerly used as apartment # 3 and never ventured to the other side; and that Angela Hicks occupied the other side. According to Zeigler, she did her laundry at a laundromat with her mother, did not know there was a washing machine in the apartment, had never seen the door to the laundry room, and did not know who had the combination to the padlock on the laundry room door. She denied seeing any cocaine or guns in the apartment. When asked about the maroon briefcase, Zeigler said that she had never seen Waite with it but “Angie had a briefcase like it.” She disclaimed any knowledge of the combinations to the locks on the briefcase.
Zeigler’s parents also testified. According to her mother, Zeigler stayed at Waite’s apartment only a few nights a week. On her three visits to Waite’s apartment, her daughter and Waite were occupying only the left side of the apartment. Zeigler’s father testified that his daughter lived with him during August and September of 1990, although she did not spend every night at home.
The jury acquitted Zeigler (and Waite) of possession with intent to distribute and of possession of a firearm in relation to that offense. The jury convicted Zeigler (and Waite) of the lesser included offense of possession of a controlled substance. 21 U.S.C. § 844(a). Waite was also convicted of one count of unlawful possession of a firearm.
At the close of evidence, Zeigler had renewed her motion for a judgment of acquittal, as had Waite. After the verdict the district court denied the motions in a memorandum opinion. As to Zeigler, the court stressed her relationship with Waite and her frequent presence in the apartment. The court also found “as the jury obviously did, that much of Zeigler’s testimony was not credible insofar as it was intended to protect Waite.” She testified “that she never saw guns ... in the apartment, although there was other testimony that weapons [and] weapons accessories ... were in plain view in the bedroom in which Zeigler was present at the time of her arrest.”
II
A
The general issue is whether sufficient evidence supports Zeigler’s conviction for possession of the cocaine. Viewing the government’s evidence in the light most favorable to it, we do not detect enough proof to connect Zeigler to the cocaine found in the laundry room. Nothing indicated that she actually possessed the cocaine. Her guilt depended on the government’s proving beyond a reasonable doubt that she constructively possessed it, that she “knew of, and was in position to exercise dominion and control over” the cocaine. United States v. Byfield, 928 F.2d 1163, 1166 (D.C.Cir.1991); United States v. Johnson, 952 F.2d 1407, 1411 (D.C.Cir.1992). Zeigler’s frequent presence in the apartment, the scene in the bedroom when the police arrived, and the landlady’s testimony established her close ties with Waite and with the premises. Even so, where in the government’s case is there proof that Zeigler knew of the cocaine? Her knowledge might have been inferred if Waite were selling drugs from the apartment. But the government presented no such evidence; and, in any event, the jury acquitted both defendants of the distribution charge.
Even if there were evidence of Zeigler’s knowledge of the cocaine, the government’s case would still fall short. Zeigler was near the cocaine, down the hallway from it when the police arrived. But “ ‘mere proximity or accessibility to contraband will not support a conclusion that an individual had knowing dominion and control over it.’ ” United States v. Williams, 952 F.2d 418, 420 (D.C.Cir.1991) (quoting United States v. Foster, 783 F.2d 1087, 1089 (D.C.Cir.1986)), cert. denied, — U.S. -, 113 S.Ct. 148, 121 L.Ed.2d 99 (1992). Those who spend considerable time in another’s apartment, even those who “live” there, do not for that reason possess everything on the premises. No one would say, for instance, that Zeigler “possessed” Waite’s spare clothing simply by knowing the contents of his dresser. The cocaine was locked in a briefcase in a locked room in someone else’s apartment. The jury might have concluded that the occupants treated this as one apartment and that Zeig-ler crossed the invisible barrier in the hallway, freely moving from one side of the apartment to the other. Yet the government presented no evidence, circumstantial or direct, that Zeigler ever entered the laundry room or had the combination to the locks on its door or on the briefcase. When we look at the government’s evidence and ask if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Derr, 990 F.2d 1330, 1337 (D.C.Cir.1993), the answer is no. Our cases go rather far in sustaining possession convictions of persons living on premises where drugs are found, see United States v. Jenkins, 928 F.2d at 1179; United States v. Morris, 977 F.2d 617, 620 (D.C.Cir.1992), but not so far as the government wants to take us in this case.
B
The trial court therefore erred in denying Zeigler’s motion for a judgment of acquittal made at the close of the government’s case-in-chief. But this error does not in itself warrant reversing her conviction. Our en banc decision in United States v. Foster, 783 F.2d 1082, 1083 (D.C.Cir.1986), discarded the rule “that objection to denial of a motion for judgment of acquittal made at the close of the government’s case-in-chief is not waived by the defendant’s proceeding with the presentation of his evidence, so that the validity of an ensuing conviction must be judged on the basis of the government’s initial evidence alone.”
Zeigler’s sufficiency claim therefore must be evaluated in light of all the evidence introduced at trial, including evidence the defense presented. See also Byfield, 928 F.2d at 1165-66. As to Zeigler’s testimony, none of her answers, on direct or on cross-examination, assisted the prosecution’s case. The government proposes that we look beyond her words, thereby raising the question discussed in Judge L. Hand’s famous Dyer v. MacDougall opinion (201 F.2d 265 (2nd Cir.1952)). See Jenkins, 928 F.2d at 1178-79.
Dyer v. MacDougall began as an action for libel and slander. The plaintiffs only witnesses would have been the two defendants. His plan was to call them to the stand, have them deny uttering the slanders, and hope the jury, in light of their demeanor, would believe the opposite of what they testified. Because in such event there could be no effective appellate review of a verdict in the plaintiffs favor, Judge Hand ruled for the court that the defendants were entitled to summary judgment. To be sure, a witness’s demeanor “is a part of the evidence.” 201 F.2d at 269. The jury “may, and indeed they should,” take it into consideration. Id. Demeanor evidence “may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.” Id.; cf. NLRB v. Walton Mfg. Co., 369 U.S. 404, 406-08, 82 S.Ct. 853, 854-55, 7 L.Ed.2d 829 (1962). “He, who has seen and heard the ‘demeanor’ evidence, may have been right or wrong in thinking that it gave rational support to a verdict; yet, since that evidence has disappeared, it will be impossible for an appellate court to say which he was.” Id. Thus, while it was “true that in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him.” Id.
Juries in criminal cases, like juries in civil actions, may and should take a witness’s demeanor into account. Perhaps the jury here treated Zeigler’s testimony, in light of her demeanor, in the manner described by Judge Hand. If it made “negative” inferences, these would have supplied enough evidence to convince any rational juror of her guilt beyond a reasonable doubt. Inferring the opposite of what she testified — as the government supposes the jury did — would mean that for months Zeigler had been living full-time with Waite in the apartment; that she ventured throughout the apartment; that she saw cocaine and guns in the apartment; that she knew of the laundry room, knew it was locked and knew who had the combination to the lock; and — most important — that she had the combinations to the locks on the briefcase containing the cocaine.
This raises an obvious problem. It is not only impossible to determine whether the jury made all or any of these negative inferences, but also impossible to judge whether it would have been justified in doing so. Jury deliberations are secret. Demeanor evidence is not captured by the transcript; when the witness steps down, it is gone forever. An appellate court cannot evaluate it, and therefore cannot determine how a rational juror might have treated it. The situation would be different if the defendant’s testimony, on its face, were utterly inconsistent, incoherent, contradictory or implausible. Then an appellate court would have some assurance that when the defendant said “black” the jury reasonably could have concluded that the truth was “white.” This may have been the situation as the plurality saw it in Wright v. West, but it is not the situation here. Zeig-ler’s testimony relating to the cocaine in the briefcase was hardly implausible.
Because we cannot evaluate demeanor, a decision along the lines the government proposes would mean that in cases in which defendants testify, the evidence invariably would be sufficient to sustain the conviction. We would in each such case assume the jury correctly evaluated the evidence. In explaining how this could be so in light of the defects in the government’s proof, we would reason backwards to the only explanation available — the defendant’s demeanor. This sort of approach, beginning with the hypothesis that the jury must have gotten things right, contradicts the reason why appellate courts review convictions for sufficiency of evidence — that juries sometimes get things wrong. Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788.
We have considered the possibility of a middle ground, of a rule such as this: when the government has presented at least some evidence of guilt, an appellate court may add negative inferences from the defendant’s testimony to sustain the conviction. The Second Circuit has rejected the idea: “Although [demeanor] is a legitimate factor for the jury to consider, this could not remedy a deficiency in the Government’s proof if one existed.” United States v. Sliker, 751 F.2d 477, 495 n. 11 (2d Cir.1984). The Supreme Court rejected it in a denationalization case tried to a court. Nishikawa v. Dulles, 356 U.S. 129, 137, 78 S.Ct. 612, 617, 2 L.Ed.2d 659 (1958). There is no principled way of deciding when the government’s proof, less than enough to sustain the conviction, is nevertheless enough to allow adding negative inferences from the defendant’s testimony to fill the gaps. We cannot subscribe to the Seventh Circuit’s analysis in United States v. Zafiro, 945 F.2d 881, 888 (1991), aff'd on other grounds, — U.S. -, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), which the plurality cited in West, U.S. at -, 112 S.Ct. at 2492. Zafiro reasons that defendants will not take the stand if the government has offered no evidence of guilt: if the government has presented no evidence, the district court will quickly end the case by entering'a judgment of acquittal. 945 F.2d at 888. Therefore, appeals presenting the Dyer v. MacDougall problem “are unlikely to occur” and the prospect of undermining appellate review should be of little concern. Id. This of course assumes that district courts will not err. Also, Zafiro does not answer the question before us — what does an appellate court do when the government has presented some evidence, but that evidence is itself insufficient to sustain the conviction, and the district court does not end the case? Such appeals, rare as the Zafiro court thought they may be, do occur. This is one of them. And it is one in which the defendant did decide to testify.
Only speculation supports Zeigler’s conviction. We cannot determine whether Zeigler, by her demeanor on the stand, supplied the evidence needed to support her conviction. It is true that the traditional method of reviewing the sufficiency of evidence in criminal cases itself involves some speculation. We take the evidence in the light most favorable to the government, yet we cannot be sure the jury took it that way. But at least we draw inferences from the record. We do not begin and end on nothing more than a guess about what the jury might have observed at trial. Appellate review of the sufficiency of evidence protects against wrongful convictions. We refuse to destroy the protection in cases in which defendants testify.
Reversed.
. The government also presented several expert witnesses who testified about the guns, the chemical analysis of the cocaine, and the modus oper-andi of drug dealers.
. Zeigler also moved for a new trial on the basis of newly discovered evidence contained in an affidavit of Angela Hicks. Defense counsel stated that he had been unable to locate Hicks prior to trial. In her affidavit executed after trial, Hicks swore that she had been living on the right side of the apartment for about a month before the search; that she had been taken there by "Tony Ford”; that Ford was the only person she had ever seen go into the laundry room (where the cocaine was discovered); that she — Hicks— owned a "brown burgundy briefcase" while she was living in the apartment but that she did "not know what happened to it.” The court denied the motion.
. - U.S. -, -, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992). After quoting extensively from the cross-examination of the defendant, id., - U.S. at -, 112 S.Ct. at 2484-85 n. 1, the plurality opinion concluded that the jury could have considered defendant’s testimony "perjured” and, if so, as affirmative evidence of guilt. Id., - U.S. at -, 112 S.Ct. at 2492. Of this there is- no doubt. The issue we face is different: it concerns not the jury's prerogative, but the function of an appellate court reviewing the sufficiency of evidence to support a conviction.
.We were too hasty in Jenkins, 928 F.2d at 1179, when we said that the Second. Circuit takes demeanor evidence into account in determining whether there is sufficient evidence to support a conviction. The quotation in the text from Sliker is plainly to the contrary.
In an earlier opinion, after saying that “a jury is free, on the basis of a witness' demeanor, to 'assume the truth of what he denies’ although a court cannot allow a civil action, much less a criminal prosecution, to go to the jury on the basis of this alone,” Judge Friendly, writing for the Second Circuit in United States v. Marchand, 564 F.2d 983, 986 (1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978), reviewed the evidence and found it sufficient without relying on demeanor evidence. 564 F.2d at 999-1001. Judge Friendly followed the same approach in United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir.1969): the government "having submitted substantial proof of Geaney's guilt, the judge could take into account the likelihood that in Judge L. Hand's well-known phrase [in Dyer v. MacDougall], the jury would find ‘not only that the witness’ testimony is not true, but that the truth is the opposite of his story * * *.' ” See also United States v. Eisen, 974 F.2d 246, 259 (2d Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1619, 123 L.Ed.2d 178 and - U.S. -, 113 S.Ct. 1840, 123 L.Ed.2d 467 (1993).
. Or to the Ninth Circuit's in United States v. Kenny, 645 F.2d 1323, 1346 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981).
. Zafiro did not mention the Seventh Circuit's earlier. decision, in a labor board case, holding that the findings of an administrative law judge could not be sustained on the basis that the ALJ must have believed "that the opposite of that to which [the witnesses] testified was true.” Roper Corp. v. NLRB, 712 F.2d 306, 310 (7th Cir.1983). "[I]f such 'proof' were acceptable as sufficient evidence, effective review of fact-finding would involve analysis of a chimera.” Id.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Joseph P. CANDELLA et al., Defendants-Appellants.
No. 195, Docket 73-1894.
United States Court of Appeals, Second Circuit.
Argued Oct. 11, 1973.
Decided Nov. 26, 1973.
Certiorari Denied March 18, 1974.
See 94 S.Ct. 1563.
Howard Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.
Harvey Tropp, New York City (Gordon & Tropp, Joel R. Schweidel, New York City, of counsel), for defendants-appellants.
Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
MULLIGAN, Circuit Judge:
Joseph P. Candella and John Kevin Gilgan were the principal officers and the sole owners of Beacon Moving and Storage, Inc., a Brooklyn-based moving company. In 1971, Beacon undertook to move the property of four commercial tenants, Lapchinsky Iron Works, Chelsea Desk Co., Precision Container Co. and G.A.L. Manufacturing Co., each of which had been forced to move from Manhattan and Brooklyn sites because of federally funded urban renewal projects. Their property had been condemned by the City of New York and each was entitled to reimbursement from the City for its moving expenses.
The tenants, who had the initial obligation of paying the mover for his services, assigned their claims for reimbursement from the City to the mover, as permitted by the United States Department of Housing and Urban Development (HUD) regulation (24 C.F.R. § 41.12). The City then had the responsibility to process and pay the claims made by the movers. The City, in turn, was entitled to reimbursement by HUD. The City agency in charge,, the Department of Relocation, based its payments on bills submitted by the moving company which were accompanied by so-called “bills of lading,” which detailed the number of man-hours worked on each day by the employees of the mover, plus an affidavit by the mover which attested to the accuracy of the bills of lading. The affidavits relating to the moves involved herein were executed on forms prepared by the City and not by HUD. The convictions appealed from were based on indictments charging that the bills of lading and affidavits submitted by the defendants for the four moves in question were false, in violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2 (aiding and abetting).
Counts 1, 2, 3 and 5 related to false affidavits, and counts 6, 7, 8 and 10 charged that the bills of lading submitted exaggerated the amount of work performed. (Counts 4 and 9, which related to a fifth moving operation, were dismissed for jurisdictional reasons before trial with Government consent.) The jury trial was conducted before Hon. Dudley B. Bonsai, United States District Judge, Southern District of New York. The three defendants were found guilty on all eight counts on February 16, 1973, and judgments were entered on April 3, 1973. Judge Bonsai sentenced Candeda and Gilgan to concurrent prison terms of 60 days on each of the eight counts and fines of $1000 on each count. The corporate defendant Beacon was fined $2000 on each of the eight counts. This appeal followed.
I. JURISDICTION
Appellants first claim that counts 1, 2, 3 and 5 of the indictment, which charged that the “Affidavits by Moving Company for Moving Expenses” with respect to the four moves in question were false, should have been dismissed on defendants’ pre-trial motion for lack of jurisdiction of the subject matter. Appellants’ argument is based on the contention that the affidavits in question were not within the jurisdiction of HUD because they were not forms required by HUD, and were not only gratuitous but improper. Since the statute involved in this case prohibits the making of any false statements in any matter within the jurisdiction of a federal agency, the counts based upon the affidavits must fall if the affidavits were not in a matter within the jurisdiction of HUD.
The applicable HUD regulation is as follows:
(a) Form of claim. To obtain a relocation payment, site occupants shall file written claims with the agency on the appropriate HUD forms.
(b) Documentation in support of a claim. A claim shall be supported by the following:
(1) If for moving expenses; except in the case of a fixed payment, a receipted bill or other evidence of such expenses. By prearrangement between the agency, the site occupant, and the mover, evidenced in writing, the claimant or the mover may present an unpaid moving bill to the agency, and the agency may pay the mover directly.
(2) If for actual direct loss of property, written evidence thereof, which may include appraisals, certified prices, copies of bills of sale, receipts, canceled cheeks, copies of advertisements, offers to sell, auction records, and such other records as may be appropriate to support the claim.
(3) In any other case, such documentation as may be required by the agency, which may include income tax returns; withholding or information statements, and proof of age.
24 C.F.R. § 41.12.
This regulation is interpreted by appellants to preclude the use of the affidavit required by the City. They read § 41.-12(b)(3) to mean that the City may require other documentation in its discretion only in cases not covered by subdivisions (1) and (2). While § 41.-12(b)(1) requires that a claim for moving expenses be supported by a receipted bill (here the “bill of lading”), we cannot construe the regulation to hamstring the City so as to make the bill the sole and exclusive documentation to be submitted. The section in fact permits “other evidence of such expenses.” While HUD may not have provided its own forms for reimbursement in cases not involving moving expenses or direct property losses, there is no language at all in the regulation which precludes the City from employing supplemental documentation in a moving expense situation. We read the regulation as only requiring the minimum; if further documentation was meant to be excluded the regulation could have easily so provided.
The jurisdiction of HUD here is clear. The City entered contracts with the United States on specific urban renewal projects including those which prompted the moving here. The United States became ultimately responsible for paying 100% of the moving expenses incurred by the four concerns involved. The interest of HUD in this matter was made abundantly clear to the appellants. They agreed to be paid by the City instead of the tenants. The affidavits they executed to obtain reimbursement from the City fully explained their purpose and HUD’s involvement, reciting in part:
[T]his affidavit is sent to the City of New York, knowing that the said City of New York, will "rely thereon in making proper payment of Relocation payment for the moving of said Tenant by virtue of Section 114 of the Housing Act of 1949 as amended, and will make this affidavit available to the Department of Housing and Urban Development of the United States of America for the purpose of secur- . ing approval for full or partial reimbursement, and that any false statement will be a violation of the provisions of the United States Code subjecting the maker hereof to the penalties contained in the pertinent sections thereof.
It is thus clear beyond any doubt that the mover not only knew that the City would make the affidavits available to HUD for reimbursement purposes, but that any false statements contained therein would constitute violations of the United States Code subjecting him to criminal sanctions.
In arguing that the affidavits were not made in matters within the jurisdiction of any agency of the United States, appellants rely upon Lowe v. United States, 141 F.2d 1005 (5th Cir. 1944). in that case, an employee of a private shipbuilder made a false statement to his foreman as- to the number of hours he had worked on a particular day. The company had an agreement with the United States Maritime Commission under which it was reimbursed for its payroll costs. The court held that the payroll department of the shipyard company was not an agency of the United States, nor was it controlled or supervised by the federal agency. Hence, there was no offense against the United States. The fact pattern here was, of course, markedly different. Urban renewal is a joint enterprise of the City and the Federal Government. Each government cooperates in the funding of federally assisted projects. The City is responsible for administering federally funded projects, as well as those in which it provides the funding alone. The City’s procedures for direct payment to movers are subject to explicit regulation, supervision and audit by HUD.
In distinguishing Lowe, the Eighth Circuit in Ebeling v. United States, 248 F.2d 429, 435, cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957) stated:
We read the opinion as implying that there was in that case no charge, or anything to show, that the employee knew that the work which he was doing, and the wages which he claimed, had been made the subject of an express contract provision between his employer and the government, constituting them a matter of direct charge and reimbursing obligation on the part of the United States; that the working time which he turned in thus necessarily would be a matter which was to be used against the government and as to which it accordingly had a right of audit and adjustment; and that in making the false statement with which he was charged, he had turned it in on this basis and with the intent that it was to be accepted and used in that relationship.
The case here is even stronger since the appellants were not only made aware of the nature and purpose of the affidavit, but were further advised that false statements would be violative of the United States Code.
Appellants also argue that counts 1 and 6 of the indictment involving the affidavit and bill of lading submitted by the appellants for the moving of the Lapchinsky Iron Works should have been dismissed since they involved a payment of only $3300. HUD regulations require that all claims for moving expenses in excess of $10,000 be approved by HUD. In the case of claims under $10,000, the City is authorized to make payment without securing express approval from HUD, although the complete file on such claims must be kept available by the City for audit and inspection by HUD. The affidavits and bills presented in connection with the Lapchinsky move thus were not turned over to HUD. Because of this, appellants argue that counts 1 and 6 cannot be said to concern “matters within the jurisdiction” of HUD. Case law makes it clear, however, that a violation of § 1001 does not require that the false statement must actually have been submitted to a department or agency of the United States, but rather that it was contemplated that the statement was to be utilized in a matter which was within the jurisdiction of such department or agency. See United States v. Kraude, 467 F.2d 37, 38 (9th Cir.), cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972); United States v. Greenberg, 268 F.2d 120, 122 (2d Cir. 1959); United States v. Ebeling, supra, 248 F.2d at 434; United States v. Myers, 131 F.Supp. 525, 529-530 (N.D.Cal.1955).
II. VENUE
The appellants argue that venue was improperly laid in the Southern District of New York with respect to counts 1, 3, 6 and 8, which involved the affidavits and bills of lading of Lapchin-sky and Precision, both Brooklyn-based companies which were being moved from Brooklyn locations. The argument is that since the allegedly false statements were prepared, executed and handed to New York City officials in Brooklyn, the crime was committed there, and the venue is therefore proper only in the Eastern District of New York, which embraces Brooklyn. While the question of whether the trial is conducted almost literally at one end of the Brooklyn Bridge or the other might seem to be a quibble, questions of venue in criminal cases are of constitutional concern. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 90 L.Ed. 562 (1944). Venue must be laid where the crime was committed, and that place is to be “determined from the nature of the crime alleged and the location of the act or acts constituting it.” United States v. Anderson, 328 U. S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). The Government argues that venue properly lies in the Southern District because the affidavits and bills of lading in question were simply accepted at the City’s branch offices in Brooklyn for the convenience of parties seeking to file papers with the Department of Relocation and were then conveyed to the central office in Manhattan for examination and payment. The Lap-chinsky documents remained in the City’s Manhattan office for subsequent audit by HUD in New York. The Precision documents, involving expenses in excess of $10,000, were sent to the HUD office in Manhattan, where the City’s initial decision to make payment was approved. The appellants cite no authority for their position but seem to rely on the theory that since enough had been done to constitute a crime in the Eastern District, the crime therefore terminated.
However, under 18 U.S.C. § 3237(a), an offense begun in one district and completed in another, or committed in more than one district, may be prosecuted in any district in which such offense was “begun, continued, or completed.” Although enough was done in the Eastern District to constitute a crime there, as appellants admit (cf. United States v. Ruehrup, 333 F.2d 641 (7th Cir.), cert. denied, 379 U.S. 903, 85 S.Ct. 194, 13 L.Ed.2d 177 (1964)), it does not follow that the crime then terminated, and that what transpired in Manhattan was irrelevant for venue purposes. See United States v. Miller, 246 F.2d 486 (2d Cir.), cert. denied, 355 U.S. 905, 78 S.Ct. 332, 2 L.Ed.2d 261 (1957); De Rosier v. United States, 218 F.2d 420 (5th Cir.), cert. denied, 349 U.S. 921, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Appellants seek to distinguish Miller and De Rosier because the City and not the defendants (as in those cases) forwarded the offending documents to Manhattan. The City’s accepting the papers in Brooklyn, however, no more confined the offense to Brooklyn than the Post Office Department’s acceptance of the documents in Miller and De Rosier confined the offense in those cases to the district in which the mailbox was located.
We think that venue is properly laid in “the whole area through which force propelled by an offender operates.” United States v. Johnson, supra, 323 U.S. at 275, 65 S.Ct. at 250. The force propelled here by the defendants immediately contemplated Manhattan. 18 U. S.C. § 1001 defines the offense as the making of a false or fraudulent statement or representation in a matter within the jurisdiction of a federal agency. The false statements here were intended to produce funds. The statements continued to be false and continued to be within the jurisdiction of the United States not only when initially presented but also upon arrival in Manhattan, where the decision was reached to make the funds available. See United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836 (1917). Venue for all counts thus was properly laid in the Southern District of New York.
III. EVIDENCE
The appellants urge that the court below erred in not directing a verdict of acquittal on the ground that the Government had not established that the bills of lading were false. The Government sought to establish falsity by comparing the man-hours for each moving job claimed on the bills of lading with the corporation’s own payroll books. The appellants argue that their payroll books were grossly inaccurate or that even if they were accurate, the Government arbitrarily deleted men and hours found in the payroll book from its computations. We are of course bound to view the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959). There is ample evidence from which the jury could infer that the bills of lading were knowingly false and fraudulent. The claims of appellants were fully presented to the jury below, and we cannot substitute our view for that of the jurors who heard the evidence and observed the witnesses.
IV. CHARGE TO THE JURY
The trial court erroneously charged the jury with respect to the defendants’ position as to the bills of lading. While Judge Bonsai did say that the defendants denied their falsity, he further added: “As- I understand it, they contend here really that they were doing the best they could and that they thought that they should come out with something that was approximating at least the estimate, the City’s estimate of the cost of the job.” However, after objection to this characterization of the position of the defense was made, the trial judge corrected his statement and said: “Then, from the defense side, the defendants are contending here that the hours they did expend on these jobs did total the hours that were in the bills of lading, and I will tell you that that is what the defendants are so contending.” Appellants argue that the judgment below should be reversed because the erroneous charge was never expressly retracted by the trial judge but was merely supplemented.
We cannot agree that reversal is required on these facts. In addition to the corrective charge, the original erroneous charge was not one of law but of fact, and it had been preceded by the statement:
It may help you in your own recollection if I review what I understand to be the contentions here. But this again is a matter for your recollection. I am doing it only perhaps to help you with your recollection.
In light of the prior admonition and the subsequent correction, we cannot find the error so prejudicial as to require a new trial. As the appellants admit, the testimony of defendant Candella that the bills of lading were in fact accurate made the position of the appellants abundantly clear. It is equally clear that the jury did not accept it.
Affirmed.
. 18 U.S.C. § 1001 provides :
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
. Under HUD regulations, the City shares a responsibility to pay a portion of the moving expenses of the tenant. Present regulations continue to provide for City involvement. 24 C.F.R. § 41.13. Due to procedural problems detailed in the affidavit of a HUD official appearing in the record before us, the Comptroller General ruled that HUD would pay for all of the moving expenses involved in the projects here in issue. Thus, the City is not a gratuitious intruder in the auditing process but has a definite stake in assuring that the bills submitted accurately re-fleet the cost of moving. With the widespread publicity attendant upon raids of the City treasury, the affidavit requirement here cannot be at all characterized as improper but is in fact commendable.
. Cases involving erroneous charges of applicable principles of law are not apposite, since the jury is bound by the law enunciated by the judge. Where, as here, the misstatement is one of facts, the jurors’ own recollections of the facts as testified to are controlling and, as we have indicated, they were so advised by the court.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Robert T. GULLETT, Appellant, v. BEST SHELL HOMES, INC. OF TENNESSEE, Appellee.
No. 19871.
United States Court of Appeals Fifth Circuit.
Jan. 17, 1963.
Charles M. Murphy, Jr., Memphis, Tenn., for appellant.
L. A. Smith, Jr., Smith & Hurdle, Holly Springs, Miss., for defendant-appellee, Best Shell Homes, Inc. of Tenn.
Before RIVES, CAMERON and BELL, Circuit Judges.
CAMERON, Circuit Judge.
Appellant Gullett brought an action against appellee Best Shell Homes, Inc., alleging that Best was vicariously liable for his injury, negligently caused by one Burlison. Appellee Best denied that the alleged tort feasor Burlison was its servant, but took the position that he was an independent contractor for whose actions Best was not responsible. The action was tried before the District Judge, sitting by agreement as trier of both the law and the facts, and judgment against the plaintiff dismissing the complaint was rendered after the conclusion of appellant-plaintiff’s evidence, rule 41(b) F.R.Civ.P., on the court’s finding that the alleged tort feasor was an independent contractor.
Appellant argues that Burlison, a licensed electrician, was Best’s servant at the time of the accident. Three general contentions are made: (1) that the general relationship between Best and Burlison was that of master-servant; (2) that the specific relationship at the time of the accident was that of master-servant; and (3) that Best is “estopped” to deny that Burlison was an “employee” at the time of the accident because Best’s workmen’s compensation insurer paid Burlison compensation benefits for injuries sustained in the accident giving rise to this action.
Appellee contends that the findings of fact of the court below are not clearly erroneous and that estoppel has no place in this ease, inasmuch as, inter alia, the injured party did not, to his detriment, rely upon the position taken by Best or its compensation insurer. Appellee relies on the finding by the court below, moreover, that the compensation benefits to Burlison were paid as the result of a mistake of fact.
A brief recital of the facts of this case is sufficient. Best was a general contractor, engaged in entering into agreements with lot owners for the construction of “shell” homes according to standardized plans and specifications. It customarily let out various phases of the work by subcontracts. Burlison did the electrical work on most of the houses built, the terms of the written contracts computing the contract price on the basis of $2.50 per electrical outlet.
Burlison was a licensed electrician, maintaining his own place of business in Memphis, Tennessee under the name Safety Electric Company. He had his own office, telephone, (listed as Safety Electric Co.), tools, automobile and other equipment, and hired his own helpers and employees. He did a general electrical contracting business, holding himself out to the public as an electrician, but most of his time during the period preceding the accident had been spent performing Best’s contracts.
Best did not supervise or control Bur-lison’s work. All it required was that the electrical work meet the specifications called for in the construction contract, and pass local building codes. Any complaints or defects were to be handled on Burlison’s “own time” — i. e., at no extra remuneration.
Best told Burlison that there was a defect in a house at Maben, Mississippi in which Burlison had installed the wiring. Burlison investigated the defect and found that it had been caused by a carpenter driving a nail through a wire— after Burlison completed the wiring— and he telephoned Best and advised that the repair of the defect was not his responsibility. He was asked to make the repair and told that he would be paid extra for the work.
On his way back home after the curative work had been completed, Burlison was involved in the accident in which both he and appellant Gullett were injured. Burlison was paid Workmen’s compensation benefits, but was later notified that the payments were made through error and that he would have to repay the compensation carrier.
One additional factor is stressed by appellant. Although no deductions for withholding tax or social security were made from Best’s payments to Burlison, the regular deduction was made of four percent of the contract price from each contract settlement. The deduction was made to defray the cost of workmen’s compensation insurance coverage. This same deduction was made from the amount due all subcontractors, and referred to in the contracts as a “holdback for workmen’s compensation insurance.”
In determining the general relationship between Best and Burlison, it is not necessary to go into an elaborate discussion of the Mississippi law of agency. The legal standards applied by the court below, sitting also as the finder of facts, were those generally applied in Mississippi — being substantially an examination of those matters of fact set out in § 220, p. 483, Restatement of the Law of Agency. Mississippi Employment Security Commission v. Plumbing Wholesale Co., 1954, 219 Miss. 724, 69 So.2d 814; Texas Co. v. Mills, 1934, 171 Miss. 231, 156 So. 866.
During oral argument counsel for appellant made much of the fact that, at times, Best paid Burlison “mileage” to and from the construction sites. It is common knowledge that many contractors charge a mileage fee for small jobs done outside of a given area. The payment of such “mileage” does not, in and of itself, make one a servant rather than an independent contractor, although it is relevant proof in the consideration of the relationship. In this instance, we do not believe that the sporadic payment of “mileage” was indicative of a master-servant relationship; rather, under the circumstances of this case, it is more indicative of an independent contractor status.
Appellant argues that even if the general relationship between Best and Burli-son were not that of master and servant, such a relationship was established when Burlison did the extra work not required of him by the contract. But there is no evidence that Best exercised or possessed any more control or right of control over Burlison while doing the extra work than while performing the work regularly done under written contracts. Best was interested in the results attained, not how the work was done. The only factor which was changed was the method of payment. Ostensibly the agreement was to pay whatever the extra work was worth.
We hold that the findings of fact specially made by the court below are not clearly erroneous and that the law of Mississippi on the controlling issues was properly applied to these facts.
Appellant’s contention that Best is now “estopped” to deny that Burlison was a servant on the basis of the payment of compensation benefits to Burlison for injuries received in this accident, was properly rejected by the court below. In addition to that court’s conclusion that the elements of estoppel were not present, it is apparent that, at most, all that was involved in this evidence was a possible admission on Best’s part. The report to the Workmen’s Compensation Commission by Best’s office employee that Burlison was an “employee” would seem to be a conclusion of law on that employee’s part, which was admissible evidence for consideration by the court in its determination as to how the parties construed the relationship.
In dealing with this situation, the court below recognized that one may be a “statutory employee” for workmen’s compensation purposes and not be a common-law servant for other purposes. A subcontractor would be neither.
We conclude that the trial court was justified in finding and holding that Burlison was not an agent or employee of Best for whose tortious acts Best was liable, and its action in dismissing appellant’s claim was correct and the judgment is Affirmed.
. “ * * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried l>y the court lüithout a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Buie 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this suhdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.” [Emphasis added.]
. “The essential elements of estoppel are conduct and acts, language or silence, amounting to a representation or concealment of material facts, with knowledge or imputed knowledge of such facts, with the intent that representation or silence, or concealment be relied upon, with the other pai-ty’s ignorance of the true facts, and reliance to his damage upon the representation or silence.” Crowe v. Fotiades, 1955, 224 Miss. 422, 80 So.2d 478, 486; Harris v. American Motorist Insurance Co., 1961, 240 Miss. 262, 126 So.2d 870, 875. It is evident that even if it be assumed that there were some false representations of fact or facts on the part of Best, the appellant did not rely on such actions and could not have been prejudiced thereby. The appellant in this action was not in any manner affected by the relations between Burlison, Best and the compensation insurer.
. Under Mississippi Code Ann. § 6998-04, prime contractors are obligated to provide workmen’s compensation benefits1 to employees of subcontractors if the subcontractor does not provide such benefits. Best would be obligated to provide compensation benefits to any of Burlison’» employees, therefore, under the Mississippi law, even though such employees of a subcontractor were not Best’s servants, if Burlison did not provide such coverage.
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_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.
MONROE v. PROPHET et al.
No. 5944.
Circuit Court of Appeals, Fifth Circuit.
May 28, 1931.
Geo. E. Holland, of Beaumont, Tex. (Geo. E. Holland, of Beaumont, Tex., Samuel Fine, of New York City, and Holland & Cousins, of Beaumont, Tex., on the brief), for appellant.
J. Llewellyn, of Liberty, Tex. (J. Llewellyn and E. B. Pickett, Jr., both of Liberty, Tex., on the brief), for appellees.
Before BRYAN, FOSTER, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
In 1889 Wesley Monroe acquired an undivided interest in a tract of land in Liberty county, Tex., in the partition of whieh in 1902 a described 213-acre tract was set aside to Wesley Monroe, who died in 1908. Thereafter it was discovered that that land contained oil. By his bill in equity in this case the appellant claimed that he was part owner of the last-mentioned tract and of the oil therein and which had been extracted therefrom, whieh claim was sought to be supported on the grounds that Wesley Monroe was appellant’s father, that at the time an undivided interest in the first-mentioned tract was acquired by Wesley Monroe the relation of husband and wife existed between him and appellant’s mother, whose maiden name was Georgiana Johnson, with a result that the interest acquired by Wesley Monroe was community property to one-half of whieh appellant’s mother became entitled, and that appellant, the only child of his mother, who died in 1898, was entitled by inheritance to her one-half interest in the last-mentioned tract, and to a share of the one-half interest therein of Wesley Monroe, who left surviving him other children by another marriage. The answer to appellant’s bill put in issue its allegations to the effect that Wesley Monroe was appellant’s father, and the claims asserted by the bill were resisted on the grounds that appellant’s mother was never the wife of Wesley Monroe either by the rule of the common law or under statutes of Texas, and that, if appellant in fact is a son of Wesley Monroe* he is an illegitimate child, and did not inherit any interest in said property from WesT ley Monroe. Upon the conclusion of the evidence, much of whieh was testimony of witnesses given in the presence of the presiding judge, he announced the conclusions that the evidence showed to his satisfaction that appellant is the natural son of Wesley Monroe, but that the evidence failed to show a marriáge relation between Wesley Monroe and appellant’s mother; and a decree rejecting the above-mentioned claims of the appellant was rendered.
Wesley Monroe and appellant’s mother were negroes. Prior to, and at the time of, appellant’s birth, Wesley Monroe, Georgiana Johnson, and her parents, Ben Johnson and his wife, lived on the same farm, Ben Johnson, his wife and children occupying one house on that place, and Wesley Monroe (who was also called Monroe Wes) occupying a smaller house located a few feet from the other one. No evidence indicated that there was any semblance of the existence of the marital relation between Wesley Monroe and Georgiana Johnson prior to the discovery by the latter’s parents before appellant’s birth that she was pregnant. As to whether after that discovery Wesley Monroe and appellant’s mother did or did not cohabit as husband and wife, did or did not hold themselves out as man and wife, did or did not treat each other as such, and were or were not generally reputed to be married, the evidence was greatly conflicting. It is not open to question that there was evidence, including testimony given orally in open court, some of it by witnesses examined in behalf of the appellant, which tended to prove the following: After Georgiana’s parents discovered that she was pregnant, they spoke to Wesley Monroe on the subject, and he acknowledged that he was responsible for her condition, and said he would take care of her and the child. * Thereafter he did contribute to the support of appellant’s mother and appellant, but Wesley Monroe and appellant’s mother were never married, never claimed to be man and wife, and were not reputed to be husband and wife by their relatives and acquaintances who were aware of their conduct towards each other. Georgiana did not adopt Wesley Monroe’s name, but continued to be known only by the name Georgiana Johnson until she married another man. The appellant was called Ilder Johnson. When he was married in 1914, he obtained a license for the marriage of Ilder Johnson and Hattie Sexton. When he was married a second time in 1920, the license obtained was for a marriage between Ilder Johnson and Beulah Woodrow. He did not call himself, and was not known as, Hder Johnson Monroe until after the discovery of oil in the land in question. While both Wesley Monroe and appellant’s mother were living, each of them, without any divorce, married another person, and they held themselves out, and were reputed to be, the marital spouses of the persons with whom they contracted marriages.
The relation between Wesley Monroe and appellant’s mother confessedly having been illicit in its inception, and there being no evidence that they were formally or ceremonially married, the conclusion that they became husband and wife by a common-law marriage could not properly be reached, unless it is supported either by direct evidence that they mutually agreed to be husband and wife during the remainder of their lives, and thereafter lived together as husband and wife, and so held themselves out to the public, or by evidence that they lived together as man and wife, recognizing and treating each other as such, and were generally reputed to be husband and wife in the society or neighborhood of which they were members. Clayton v. Haywood, 63 Tex. Civ. App. 571, 133 S. W. 1082; Schwingle v. Keifer (Tex. Civ. App.) 135 S. W. 194; Whitaker v. Shenault (Tex. Civ. App.) 172 S. W. 202; Edelstein v. Brown, 35 Tex. Civ. App. 625, 80 S. W. 1027; Maryland v. Baldwin, 112 H. S. 490, 5 S. Ct. 278, 28 L. Ed. 822; Travers v. Reinhardt, 205 U. S. 423, 27 S. Ct. 563, 51 L. Ed. 865; 38 C. J. 1316, 1318, 1341. A phase of the evidence, including testimony of witnesses examined in the presence of the presiding judge, distinctly negatived the conclusion that the relation of husband and wife existed at any time between Wesley Monroe and appellant’s mother. This being so, though there was other evidence tending to prove the existence of the marital relation between Wesley Monroe and appellant’s mother, the conclusion of the court below that the evidence failed to show the existence of that relation between them is not subject to be set aside, the record by no means indicating that the preponderance of the evidence was against that conclusion. Erom that conclusion it followed that the claims asserted by appellant’s bill were not sustained.
The decree is affirmed.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_stateclaim
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
Edward Lee VANDEHOEF, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, et al., Respondents.
No. 86-2092.
United States Court of Appeals, Tenth Circuit.
June 27, 1988.
J. Scott Hamilton, Broomfield, Colo., for petitioner.
Joseph A. Conte (Peter J. Lynch, Manager, Enforcement Proceedings, and Raymond R. Baca, Atty., with him on the brief), F.A.A., Washington, D.C., for respondents.
Before HOLLOWAY, Chief Judge, and TACHA and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
Edward Lee VandeHoef is a professional balloon pilot who flies a hot air balloon for the Chevron Oil Company in its advertising and promotional programs. VandeHoef has Commercial Pilot Certificate No. 508748665, with a Lighter than Air Free Balloon rating.
On August 23,1984, the Federal Aviation Administration (FAA) issued an order suspending VandeHoef’s certificate for 90 days for violations of the Federal Aviation regulations relating to minimum safe altitudes for flight and careless or reckless operation of his balloon arising out of a balloon flight by VandeHoef over Seattle, Washington.
VandeHoef appealed that administrative order to the National Transportation Safety Board (NTSB) under the administrative review provisions of the Federal Aviation Act of 1958, as amended. 49 U.S.C.App. § 1429(a). The appeal was heard by an Administrative Law Judge (AU), who, after two hearings, held that VandeHoef had violated § 91.79(b) and § 91.9 of the Federal Aviation Regulations. However, the AU reduced the suspension period to 30 days.
Both VandeHoef and the FAA appealed the decision of the AU to the NTSB. The NTSB upheld the AU’s finding that Van-deHoef had violated both regulations, but reinstated the 90-day suspension period originally set by the FAA. A request by VandeHoef that the NTSB reconsider and modify its decision was denied, and Vande-Hoef now seeks our review of the NTSB’s action. We affirm.
As indicated, the AU found that Vande-Hoef violated Sections 91.79(b) and 91.9 in his balloon flight over Seattle, Washington. On appeal, VandeHoef, in his reply brief, concedes that the findings of the AU, which were adopted by NTSB, are supported by substantial evidence. Further, VandeHoef does not complain about the fact that the NTSB reinstated the 90-day suspension period originally set by the FAA. Rather, on appeal, VandeHoef urges two grounds for relief: (1) Section 91.79(b) is unconstitutionally vague; and (2) the AU in his “Oral Initial Decision and Order” failed to comply with the provisions of 49 C.F.R. § 821.42. We do not agree with either contention.
I. Vagueness
Section 91.79 provides that aircraft (which includes balloons) shall not be operated over a congested area below an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft “[ejxcept when necessary for takeoff or landing.” VandeHoef s “vagueness” argument is based solely on the quoted language “[ejxcept when necessary for takeoff or landing.” We fail to see the vagueness perceived by Vande-Hoef. The quoted language is to us understandable English and means what it says.
In Brennan v. Occupational Safety & Health Review Commission, 505 F.2d 869 (10th Cir.1974), we held that the term “near proximity” in an administrative regulation was not “impermissibly vague.” In so holding we agreed that an administrative regulation which is so vague that persons of common intelligence must necessarily “guess at its meaning” violates due process. The “test,” we said in Brennan, was whether the regulation “delineated its reach in words of common understanding.” Brennan at 872 quoting Cameron v. John son, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968). In that same case we recognized that a regulation promulgated pursuant to remedial civil legislation should be considered in the light of the conduct to which it is applied and also observed that cases concerned with a definition of a crime or an inhibition on free speech are not controlling in determining whether an administrative regulation of the type there under consideration is void for vagueness. See also Jensen Construction Company of Oklahoma v. Occupational Safety & Health Review Commission, 597 F.2d 246 (10th Cir.1979).
We summarily reject the suggestion by VandeHoef that his is a “free speech” case. This, in our view, is a regulation promulgated pursuant to remedial civil legislation designed to promote public safety.
II. Failure of the AU to Comply with 49 C.F.R. § 821.42
49 C.F.R. § 821.42 reads as follows:
Initial decision by law judge
(b) Contents. The initial decision shall include a statement of findings and conclusion, and the grounds therefor, upon all material issues of fact, credibility of witnesses, law, or discretion presented on the record, the appropriate order and the reasons therefor (emphasis ours).
VandeHoef argues that the AU did not set forth in his “Oral Initial Decision and Order” an adequate assessment of his “credibility of witnesses,” particularly the expert witness called by both himself and the FAA who testified regarding takeoffs and landings and whether VandeHoef operated his balloon in a generally careful and prudent manner. VandeHoef would have us remand the matter to the AU and direct him at this time to make specific findings concerning the credibility of the competing experts. We decline the suggestion.
The AU’s “Oral Initial Decision and Order” consisted of some 25 pages of the transcript in which he summarized the testimony of all witnesses and found that it was really not in dispute that VandeHoef operated his balloon below the prescribed minimum altitude and that, based on all the evidence, such was not “necessary” for launching or landing. We believe that the AU substantially complied with § 821.42. Under that regulation it is not necessary that the AU assess the credibility of a witness on a “one to ten” basis.
Order affirmed.
. 14 C.F.R. § 91.79. Minimum safe altitudes; general.
Except when necessary for take-off or landing, no person may operate an aircraft below the following altitudes:
(b) Over ... congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
. 14 C.F.R. § 91.9. Careless or reckless operation.
No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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